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§1  irri  ti  irrl 


CURIOSITIES 


rHE    LAW    REPORTERS 


FEANKLIN   FISKE  HEAED. 


PRINTED  FOR 

W.    S.   BARTLETT, 

BY 

LEE    AND    SHEPARD,    BOSTON 
1871. 


Entered  according  to  Act  of  Congress,  in  the  year  1871, 

BV    FRANKLIN    FISKE   IIKARD, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


University  Press  :  Welch,  Bigelow,  &  Co., 
Cambridge. 


And  know,  my  son,  that  I  would  not  have  thee  beheve 
that  all  which  I  have  said  in  these  books  is  law,  for  I  will 
not  presume  to  take  this  upon  me.  But  of.  those  things 
that  are  not  law,  inquire  and  learn  of  my  wise  masters 
learned  in  the  law. 

Littleton. 


14181^5 


CURIOSITIES  OF  THE  LAW  REPORTERS. 

N  the  great  case,  Bartonsliill  Coal  Com- 
pany v.  Eeid  and  McGuire,^  who  were  both 
killed  in  the  working  of  a  mine  by  the 
negligence  of  a  fellow-servant,  employed 
in  the  same  common  work,  the  reporter  quaintly  ob- 
serves :  "  Eeid  and  McGuire  were  both  victims  of  the 
same  accident,  which,  though  melancholy,  has  settled 
the  law." 


YEAE  BOOK,  50  Edw.  III.  fol.  6,  pi.  12.  This 
was  a  case  in  which  a  question  arose  upon  a 
lady's  age ;  her  counsel  pressed  the  court  to  have  her  ' 
before  them,  and  judge  by  inspection  whether  she 
was  within  age  or  not.  But  "Candish,  Justice," 
showing  great  knowledge  of  female  character,  says : 
"  111  n'ad  nul  home  en  Engleterre  que  puy  adjudge  a 
droit  deins  age  on  de  plein  age  ;  car  ascun  femes  que 
sont  de  age  de  XXX  ans  voilent  apperer  d'age  de 
XVIII  ans." 


1  3  Macqueen,  266,  301  note. 
Corporation,  10  Allen,  p.  237. 
I 


Quoted  in  Oilman  v.  Eastern  Railroad 


2  CURIOSITIES   OF 

FOEINIEELY,  when  a  question  was  raised  by 
government  with  respect  to  the  right  of  per- 
sons to  take  water  from  Portsmouth  Harbor,  Lord 
Abinger  said :  '  An  old  woman  must  not  take  a 
bucket  of  water  from  that  harbor,  lest  a  seventy- 
four  should  not  float.' "  ^ 


BY  St.  Geo.  IV.  ch.  71,  it  is  enacted,  that  "  If  any 
person  or  persons  shall  wantonly  and  cruelly 
beat,  abuse,  or  ill-treat  any  horse,  mare,  gelding,  mule, 
ass,  ox,  cow,  heifer,  steer,  sheep,  or  other  cattle,"  such 
person  or  persons  are  made  liable  to  a  penalty  not  ex- 
ceeding £5,  nor  less  than  10  s.  In  Ex  parte  Hill,^ 
Starkie  and  Holroyd  contended  before  Bayley  J.,  that 
the  bull  was  included  in  the  statute  under  the  term 
"  other  cattle."  Curwood,  contra,  argued,  that  it  was 
a  rule  in  the  construction  of  Acts  of  Parliament,  that 
where  there  was  an  enumeration  beginning  with  the 
lower  degrees,  and  general  words  embracing  others 
ejusdem  generis  at  the  end,  these  general  words  did 
not  include  a  superior  degree  which  was  not  named 
in  the  Act ;  and  he  cited  the  case  of  the  Archbishop 
of  Canterbury,^  where  it  was  held,  on  the  statute  13 
Eliz.  ch.  10,  which  mentions  deans  and  chapters, 
parsons  and  vicars,  and  all  other  j^crsons  ivhatsocver 
having  sjnritual  ])romotion,  that  the  words  did  not 

1  Alderson  B.  in  Embrey  v.  Owen,  15  Jurist,  p.  636. 
■  2  3  C.  &  P.  225.  3  2  Rep.  46. 


THE  LAW  REPORTERS.  3 

extend  to  bishops,  a  superior  order,  who  were  not 
named  therein ;  and  he  contended,  therefore,  that  as, 
in  the  statute  in  question,  the  enumeration  began 
with  ox,  cow,  and  heifer,  omitting  bull,  and  concluded 
with  other  cattle,  it  did  not  include  a  bull,  the  bull 
and  the  bishop  standing  in  pari  statu  with  reference 
to  the  words  of  those  statutes  respectively. 


BAEOX  SNIGGE,  with  reference  to  the  distinc- 
tion between  the  actions  of  trespass  and  tres- 
pass on  the  ease,  thus  defines  the  duty  of  the  pleader  : 
"  An  action  of  trespass  lieth  generally,  but  in  an 
action  on  the  case  he  ought  to  hit  the  bird  in  the 
eye."  i 

IN  March  on  Slander,  A.  D.  1648,  it  is  said,  with 
reference  to  the  encouragement  of  actions  of 
slander,  "  Though  the  tongues  of  men  be  set  on  fire, 
I  know  no  reason  wherefore  the  law  should  be  used, 
as  bellows  to  blow  the  coals." 


THE  Star  Chamber  decided  that  they  might  pun- 
ish the  undue  preparation  of  witnesses,  though 
their  testimony  be  true.^ 

I  Levison  v.  Kirk,  Lane,  67.  2  Darcy  v.  Leigh,  Hobart,  324. 


4  CURIOSITIES   OF 

MR  JUSTICE  CK0MPT0:N"  recently!  gave 
this  brief  description  of  Sir  John  Fenwick's 
Case :  ^  "  The  House  of  Commons  were  unable  to  im- 
peach Sir  John  Fenwick  of  high  treason  because  there 
Avas  only  one  witness  against  him,  the  other  having 
been  spirited  away ;  but  they  and  the  Lords  passed  a 
bill  of  attainder  to  cut  off  his  liead  on  the  evidence 
of  one." 

LOED  CAMPBELL  mentions  that  Lord  Erskine, 
when  Lord  Chancellor,  in  one  of  his  judgments 
observed :  "  Lord  Coke  considers  the  word  '  lunaticus ' 
as  by  no  means  material,  classing  it  with  '  amens '  and 
'  demens,'  and  there  is  no  doubt  that  the  moon  has 
no  influence  over  lunatics ;  and  he  notices  that  Vesey 
Jun.,  the  reporter,  represents  this  as  a  point  decided 
by  Lord  Erskine,  and  writes  this  marginal  note :  '  In 
cases  of  lunacy,  the  notion  that  the  moon  has  an  in- 
fluence erroneous.' "  ^ 


THE  case  of  Lillcott  v.  Compton,  reported  by  Ver- 
non,^ merits  commendation  for  the  brevity  with 
which  the  reporter  gives  the  whole  case  in  a  single 
line :  — 

"  Plate  shall  pass  by  a  devise  of  household  goods." 

1  Resin.i  v.  Boyes,  1  Best  &  Smith,  p.  324. 

2  13  Howell  State  Trials,  538. 

3  Cranmer,  Ex  parte,  12  Ves.  445,  450. 

4  Vol.  II.  p.  638.    60  Penn.  State  Rep.  223. 


THE  LAW  REPORTERS.  5 

"  ~0  EPOPtTS  and  Pleas  of  Assizes  at  Yorke,"  by 
-L  t  John  Clayton,  is  the  title  of  a  very  thin  duo- 
decimo published  in  1651.  "  If  this  book,"  writes  Mr. 
AUibone,  "  will  do  all  that  Mr.  Clayton  promises  for 
it,  we  should  suppose  that  our  friends  the  lawyers 
would  insist  on  its  immediate  republication." — "You 
may  see  here  how  to  avoid  a  dangerous  jury  to  your 
client,  what  evidence  best  to  use  for  him,  how  to 
keep  the  judge  so  he  overrule  you  not;  so  that,  if  it  be 
not  your  own  fault,  —  as  too  often  it  is  for  fear  of 
favor,  —  the  client  may  have  his  cause  so  handled 
as,  if  he  be  plaintiff,  he  may  have  his  right,  and  if  de- 
fendant, moderately  punished,  or  recompensed  for  his 
vexation ;  and  such  pleaders  the  people  need."  — 
Preface. 

V.' 

•'IN 

CERTAIN  rules  of  evidence  which  are  now  con- 
sidered fundamental,  appear  to  have  been  alto- 
gether unknown  in  the  seventeenth  century.  In  the 
trial  of  Mr.  Hawkins,  a  clergyman,  for  stealing  money 
and  a  ring  from  Henry  Larimore,  in  September  1668, 
Lord  Hale  admitted  evidence  to  show  he  had  once 
stolen  a  pair  of  boots  from  a  man  called  Chilton,  and 
that,  more  than  a  year  before,  he  had  picked  the 
pocket  of  one  Noble.  In  summing  up,  Lord  Hale 
said,  after  referring  to  the  cases  of  Chilton  and  Noble  : 
"  This,  if  true,  would  render  the  prisoner  now  at  the 
bar  obnoxious  to  any  jury."  ^ 

1  6  Howell  state  Trials,  935. 


6  CURIOSITIES   OF 

SAUISTDEES  thus  concludes  his  report  of  the  case 
of  the  Dean  etc.  of  Windsor  v.  Gover :  ^  "  Sed 
non  allocatur,  For  this  fault  alone  judgment  was 
given  against  tlie  defendant  by  Twisden,  Eaynsford, 
and  Morton,  Justices  (Kelynge,  Chief  Justice,  being 
absent),  who  said  that  the  plea  in  this  point  was 
altogether  insensible.  But  I  believe  their  principal 
reason  was,  because  they  would  not  determine  the 
matter  of  law." 

FULLER,  in  "  The  Worthies,"  A.  D.  1662,2  writes 
of  Statham's  Abridgment :  "  The  first  and  last 
time  that  I  opened  this  author  I  lighted  on  this 
passage :  '  Molendinarius  de  Matlock  tollavit  bis,  eo 
quod  ipse  audivit  rectorem  de  eadem  villa  dicere  in 
Dominica  Eam.  Palm.  ToUe,  toUe ' ;  ^  the  miller  of 
Matlock  took  toll  twice,  because  he  heard  the  rector 
of  the  parish  read  on  Palm  Sunday  Tolle,  tolle  :  i.  e. 
'  Crucify  him,  crucify  him.'  But  if  this  be  the  fruit 
of  Latin  service,  to  encourage  men  in  felony,  let  ours 
be  read  in  plain  English." 


THE  statute  1  Edw.  II.  enacts  that  a  prisoner 
who  breaks  prison  is  guilty  of  felony ;  but  if  the 
prison  be  on  fire,  this  is  not  so,  "  for  he  is  not  to  be 
hanged  because  he  would  not  stay  to  be  burnt."  ■* 

1  2  Saund.  305  c.  6th  ed.  »  Tit.  Toll,  last  case  of  the  title. 

2  Vol.  I.  p.  371.  ed.  1841.  *  Plowden,  13. 


THE  LAW  REPORTERS.  7 

STYLE,  the  reporter,  from  his  own  account,^  would 
seem  to  have  been  careful  about  what  he  put 
into  his  book  as  decided.  In  one  case,^  after  men- 
tioning that  Chief  Justice  Glyn  "  argued  long,  much 
to  the  same  effect  as  formerly,"  he  a2:)ologizes  for  not 
giving  his  argument,  by  saying  that,  "  having  taken 
cold,"  he  could  not  "  distinctly  hear  him."  He  does 
not,  however,  make  any  excuse  in  the  case  of  Weld 
V.  Eumney,^  where  he  reports  an  argument  as  made 
by  Twisden,  at  the  Bar,  in  1650,  which  Twisden  him- 
seK,  when  on  the  Bench,  about  twenty  years  after- 
wards, said,  was  "not  one  word  of  it  true."* 


SIR  CEESSWELL  LEVINZ,  Attorney-General  of 
Charles  IT.,  gave  an  opinion,  as  law  oflicer  of  the 
Crown,  upon  the  mode  of  trying  the  question  whether 
certain  imported  "  earthenwares  be  painted  or  not "  ; 
and  the  granting  of  a  monopoly  for  "  a  new  invention 
of  making  black  pepper  white."  ^ 


MANY  years  ago  the  Court  of  Common  Pleas 
refused  to  hear  an  affidavit  read,  because  the 
barrister  therein  named  had  not  the  addition  "es- 
quire" to  his  name.^ 

1  style,  470. 

2  The  Protector  v.  Buckner,  Style,  p.  470. 

3  Style,  318.  4  i  Mod.  296. 

5  2  Chalmers's  Opinions,  284,  320.  6  i  Wilson,  245. 


8  CURIOSITIES   OF 

IT  is  recorded  of  the  saints  of  the  Eepublic,  that, 
in  reciting  tlie  Lord's  Prayer,  they  would  never 
say  "Thy  kingdom  come,"  but  always  "Thy  com- 
monwealth come."  From  a  similar  spirit,  probably, 
though  with  better  sense,  the  Court  of  King's  Bench 
was  styled  during  the  time  of  Style's  and  Aleyn's 
Reports  the  Upj)er,  or  Public  Bench.  ^ 


"  A  CCORDING  to  the  best  English  writers,"  said 
-lJl,  Baron  Alderson,^  "  the  word  '  inventory '  in- 
cludes a  description  of  a  person  as  well  as  of  those 
parts  of  his  dress  or  other  matters  which  are  particu- 
larly specified.  Thus  Shakespeare  speaks  of  a  lady 
being  inventoried  :  '  I  will  give  out  divers  schedules 
of  my  beauty :  it  shall  be  inventoried,  and  every 
particle  and  utensil  labelled  to  my  wiU.'  "  ^ 


IN  "  The  Epistle  to  the  Reader,"  the  editor  of  Golds- 
borough,  in  1653,  while  language  was  yet  more 
nervous  than  polite,  says  :  "  For  thy  further  satisfac- 
tion know,  that  thou  hast  not  here  a  deformed  brat, 
falsely  fathered  upon  the  name  of  a  dead  man,  —  too 
usual  a  trick  played  by  the  subtile  gamester  of  this 
serpentine  age." 

1  For  this  passage,  I  am  indebted  to  Mr.  Wallace.      The  Reporters, 
200,  3d  ed. 

2  Taylor  v.  Bullen,  5  Exch.  p.  786. 
8  Twelfth  Night.   Act  I.    Scene  5. 


THE  LAW  REPORTERS.  9 

IN"  a  recent  case  in  the  House  of  Lords,i  counsel 
argued  thus :  "  It  is  difficult  to  suppose  any 
species  of  profits  which  the  phrase  '  certain  and  un- 
certain profits'  would  not  comprehend.  Like  Sinclair's 
well-known  division  of  sleeping  into  two  sorts, 
namely,  sleeping  with  or  sleeping  without  a  nightcap, 
it  would  seem  to  exhaust  the  subject." 


IN  1835  -David  Gibbons,  "Esquire  of  the  Middle 
Temple,  Special  Pleader,"  published  "  A  Treatise 
on  the  Law  of  Limitation  and  Prescription."  This  is 
the  motto  on  his  title-page  :  — 

"  My  Galli-gaskins,  that  have  long  ■withstood 
The  winter's  fury,  and  encroaching  frosts 
By  Time  subdued  (what  will  not  Time  subdue  ?)  " 

J.  Phillips's  Splendid  Shilling. 


LOED  ELLENBOROUGH  was  puzzled  to  decide 
whether  the  letter  "  s  "  was  a  fatal  variance  in 
this  case :  A  declaration  alleged  that  the  defendants, 
a  partnership  firm,  made  a  bill  of  exchange,  "  their 
own  hands  being  thereto  subscribed."  The  difficulty 
was  that  the  word  "  hand  "  was  in  the  plural.  But 
he  refused  to  nonsuit.^ 

1  Repton  V.  Hodgson,  3  House  of  Lords  Cases,  p.  79. 

2  Jones  V.  Mars,  2  Campb.  305. 

1* 


10  CURIOSITIES   OF 

WHEN  Littleton  prayed  judgment  in  a  quare 
impedit,  Year  Book,  Midi.  35.  Hen.  VI.,  Prisot, 
Cliief  Justice,  protested  :  "  I  marvel  mightily  that  you 
are  so  hasty  in  this  matter  ;  for  it  is  a  weighty  matter  ; 
and  I  have  seen  similar  matters  pending  for  twelve 
years  ;  and  this  matter  has  been  pending  only  three 
quarters  of  a  year." 


TO  his  report  of  the  case  of  Wheatley  v.  Lane,^ 
Saunders  appends  this  characteristic  "note" :  "It 
was  argued  twice,  and  much  debated,  and  I  believe  is 
now  settled  :  but  the  conveniences  or  inconveniences 
which  may  follow  are  not  yet  known." 


IN"  the  Liber  Assissarum,  p.  177,  is  a  case  in  which 
Thomas  de  Setone,  one  of  the  judges  of  the 
Common  Pleas,  in  30  Edw.  III.  recovered  damages 
from  a  woman  for  calling  liim  "  traitor,  felon,  and 
robber  "  in  the  public  court. 


I 


N  a  case  in  4  Leonard,  198,  "  a  point  of   law  is 
agreed  by  the  court,  and  affirmed  by  the  clarks."  ^ 

1  1  Saund.  219. 

2  Compare  Bacon,  Essay  LVI.  "  Of  Judicature  " :  "  An  ancient  clerk, 
skilful  in  precedents,  wary  in  proceedings,  and  understanding  in  the 
business  of  the  court,  is  an  excellent  finger  of  a  court;  and  doth  many 
times  point  the  way  to  the  judge  himself." 


-       THE  LAW  REPORTERS.  H 

PLOWDEN  says  the  reporters  deliberated  upon 
doubtful  resolutions.  If  the  progeny  were 
rickety,  or  likely  to  prove  mischievous,  they  smoth- 
ered it.  It  is  matter  of  regret  that  a  similar  course  is 
not  pursued  by  the  reporters  of  the  present  day.  If 
it  were,  the  "  books  of  Eeports  "  would  be  materially 
reduced  in  size. 


THE  judgment  in  a  very  recent  leading  case  ^  in 
the  Court  of  Exchequer  Chamber  concludes 
thus  tersely :  "  In  the  result  we  come  to  the  conclu- 
sion that  the  case  of  the  plaintiff,  so  far  as  it  relies  on 
authority,  fails  in  precedent ;  and,  so  far  as  it  rests  on 
principle,  fails  in  reason." 


A  widow  shall  have  house-room,  and  meat,  and 
drink  in  common  for  forty  days;  but  she  may 
not  kill  a  bullock  within  those  forty  days  after  the 
death  of  her  husband,  in  which  time  her  dower  ought 
to  be  assigned  her.^ 


ACCOEDII^G  to  Bracton's  description  of  arson^ 
this  crime'  was  committed  "  when  any  one  from 
turbulent  sedition  wickedly  and  feloniously  made 
a  conflagration."  ^ 

1  Redhead  r.  Jlidland  Railway  Company.  9  Be^t  &  Smith,  538. 

2  Noy  Maxims,  27.  8  Ch.  XXIV.  fol.  14. 


12  CURIOSITIES   OF 

THERE  is  a  celebrated  passage  from  one  of  Lord 
Pluuket's  speeches,  relative  to  the  Statutes  of 
Limitation.  "  If  time,"  says  his  lordship,  "  destroys 
the  evidence  of  title,  the  laws  have  wisely  and  hu- 
manely made  length  of  possession  a  substitute  for 
that  which  has  been  destroyed.  He  comes  with  his 
scythe  in  one  hand  to  mow  down  the  muniments  of 
our  rights ;  but  in  his  other  hand  the  law-giver  has 
placed  an  hourglass,  by  which  he  metes  out  inces- 
santly those  portions  of  duration  which  render  need- 
less the  evidence  that  he  has  swept  away."  This 
passage  has  been  variously  rendered  in  different  pub- 
lications. In  the  case  of  Malone  v.  O'Connor,^  Chan- 
cellor Napier  cited  it  as  follows:  "Time,  with  the 
one  hand,  mows  down  the  muniments  of  our  titles  ; 
with  the  other,  he  metes  out  the  portions  of  duration 
which  render  these  muniments  no  longer  necessary." 
This  version  is  probably  more  accurate  than  any  other, 
as  it  was  furnished  to  the  Chancellor  by  one  of  the 
counsel  in  the  quare  impedit,  on  the  trial  of  which 
Lord  Plunket  made  use  of  the  imagery  in  his  address 
to  the  jury.2 


FEAR,  fraud,  and  flattery:  three  unfit  accidents  to 
be  at  the  making  of  a  will.^ 

1  Drury  Cases  in  Chanc.  Temp  Napier,  644. 

2  '■  Statesmen  of  the  Time  of  George  III."  by  Lord  Brougliam,   3d 
Series,  p.  227  note.     1  Taylor  Ev.  §  67,  5th  ed. 

3  Noy  Maxims,  97. 


THE  LAW  REPORTERS.  13 

HAWKSHEAD,  in  his  Essay  on  WiUs,  p.  335, 
relates  this  case :  "  I  was  once  in  the-  court  of 
King's  Bench,  when  one  of  the  counsel  was  making 
a  motion  upon  an  affidavit  filled  with  matters  of  ac- 
count and  calculations  of  figures,  which  he  was  detail- 
ing to  the  judges,  who  rose,  and  one  of  them  said 
(interrupting  him),  This  court  does  not  sit  here  as 
accountants ;  and  they  retired." 


LOED  TENTERDEN  C.  J.  refused  an  amend- 
ment of  a  variance  which,  according  to  the 
marginal  note  of  the  reporter,  "  would  not  have  oc- 
curred if  common  care  had  been  taken  in  the  draw- 
ing of  the  declaration ; "  ^  thus  sacrificing  the  suitor 
for  the  sake  of  punishing  the  attorney. 


IN"  Croke  Temp.  Eliz.  is  this  case :  A  poor  man 
found  a  priest  too  familiar  with  his  wife,  and  be- 
cause he  spake  it  abroad  and  could  not  prove  it,  the 
priest  sued  him  for  defamation. 


AFAIVIILIAR  maxim  is  thus  tersely  expressed : 
"  He  that  hath  committed  iniquity  shall  not 
have  equity."  ^ 

1  Jelf  V.  Oriel,  4  C.  &  P.  22.  2  Francis  Maxims,  5. 


14  CURIOSITIES   OF 

FEOM  the  rare  and  interesting  volume  entitled 
"Choyce  Cases  in  Chancery,"  ed.  1672,  we  print 
a  few  of  the  "  Choyce  Cases."  As  an  exhibition  of 
Elizabethan  habits,  manners,  and  peculiarities,  they 
are  quite  instructive. 

COSTS  against  the  clerk  for  mistaking  the  sub- 
poena. The  defendant  w^as  dismissed  for  want 
of  a  bill,  and  forty  shillings  given  him ;  whereupon  he 
bespake  the  subpoena  for  costs,  and  Robert  Bailes, 
clerk,  made  the  subpoena  ad  comparend.,  which  being 
served,  the  other  appeared  and  gotrcosts,  both  which 
costs  were  discharged,  and  ordered  that  the  plaintiff 
may  have  a  subpoena  against  the  said  clerk,  Eobert 
Bailes,  for  the  costs.  Fairbanck,  plaintiff.  Domina 
Metham,  defendant.     Anno  21  et  22  Eliz.^ 


MANTEL,  one  of  the  defendants,  maketli  oath 
tliat  his  wife  hath  a  young  child  sucking  upon 
her,  without  whom  he  cannot  directly  answer.  And 
that  the  other  defendant  is  an  infant  under  the  age 
of  twenty-one  years.  Therefore  they  are  respited  for 
answer  until  Trinity  Term  next.^ 


SUTTON,  plaintiff,  Eringto,  defendant,  a  suit  upon 
a  promise,  and  twelve  pence  accepted  in  consid- 
eration, referred  to  the  common  law.^ 

1  Choyce  Cases,  p.  133.  2  ibid.  p.  120.  3  Ibid.  p.  140. 


THE  LAW  REPORTERS.  15 

PAEISHIOISTERS  sue  their  parson  at  every  year's 
end  to  give  a  rye  loaf  and  a  red  herring.  The 
suit  was  on  behalf  of  the  parishioners,  as  ivell  rich  as 
'poor,  for  and  concerning  the  yearly  alms  or  distribu- 
tion supposed  to  be  due,  by  the  parson  of  the  said 
parish,  of  a  rye  loaf  and  a  red  herring  to  every  par- 
ishioner on  St.  Andrew's  Eve.  But  that  it  appears 
by  a  record  in  the  Exchequer,  setting  down  the  value 
of  the  said  parsonage,  that  there  is  13  s.  4  c?.  yearly  to 
be  distributed  in  victuals  at  the  same  time  to  the  poor 
of  that  parish,  but  not  to  the  gentlemen  and  men  of 
ahiliti/.  And  for  that  the  defendant  offered  to  give 
yearly  26s.  8d.  in  lieu  of  the  said  13  s.  4id.  to  the  poor 
of  the  said  parish,  who  stand  in  need  thereof,  there- 
fore day  is  given  to  the  plaintiffs  to  show  cause  why 
they  should  not  accept  thereof,  or  be  dismissed.  And 
after  assent  40  s.  a  year  was  decreed  yearly  to  the 
poor.  Elmer  and  Smith,  Church-Avardens  of  North- 
would  in  the  County  of  Norfolk,  plaintiffs ;  Scot, 
parson,  of  the  same  town,  defendant.     Anno  24  Eliz.^ 

w 

THE  plaintiff  put  in  a  replication  of  two  skins 
of  parchment  of  frivolous  matter,  and  not  fit  to 
to  be  rejoined  unto,  of  purpose  to  put  the  defendant 
to  unnecessary  cliarges,  and  therefore  Master  Godfry, 
being  of  counsel  with  the  defendants,  desired  his 
client  might  not  be  compelled  to  put  in  a  rejoinder, 
but  that  they  may  go  to  commission  with  the  same, 
and  ordered  accordingly.^ 

1  Choyce  Cases  in  Chancery,  p.  155.  2  ibid.  p.  157. 


16  CURIOSITIES   OF 

THE  sheriff  upon  an  attacliment  returned  cepi 
corpus  et  languidus  in  prisona.  Whereupon  a 
duces  tecum  was  awarded ;  and  thereupon  the  sher- 
iff returned  adhuc  Languidus.  Forasmucli  as  Walter 
AVillianis  made  an  oath  that  tlie  defendant  neither 
at  the  time  of  the  return,  nor  now,  is  so  sick  but  that 
he  goeth  abroad,  therefore  the  sheriff  is  amerced  five 
pounds  for  his  false  return.^ 


LOED  CAMPBELL  in  his  "  Life  of  Lord  Lynd- 
hurst,"  thus  relates  how  a  case  in  the  House  of 
Lords,  involving  an  important  question,  was  decided  : 
"  In  the  case  of  Johnstone  v.  Beattie,^  a  great  difficulty 
arose  from  our  being  equally  divided,  and  a  fifth  law 
lord,  who  did  not  usually  attend  the  hearing  in 
appeals,  was  called  in  to  make  a  majority.  A  domi- 
ciled Scotchman,  of  large  landed  estate  in  Scotland, 
without  any  property  in  England,  married  to  a 
Scotch  woman,  had  by  her  an  only  child,  a  daughter, 
for  whom,  before  his  death,  he  duly  appointed  tu- 
tors and  curators,  domiciled  in  Scotland,  who  were 
confirmed  by  the  Supreme  Court  in  Scotland,  and 
who  by  the  law  of  Scotland  were  entitled  to  the 
guardianship  of  her  person  and  the  management  of 
her  property.  Some  years  after  the  death  of  both 
parents,  she,  while  still  an  infant,  happened  casually 
to  be  in  England  ;  whereupon  certain  parties,  wishing 

1  Choyce  Cases  in  Chancery,  p.  115.         2  lo  Clark  &  Finuelly,  42. 


THE   LAW  REPORTERS.  17 

to  obtain  possession  of  her  and  to  supersede  the 
Scotch  tutors  and  curators,  who  had  acted  unexcep- 
tionably  in  the  guardianship  of  her  person  and  her 
property  since  her  father's  death,  filed  a  bill  in  chan- 
cery alleging  falsely  (as  was  admitted)  that  she  had 
property  in  England,  and  praying  that  one  of  them 
might  be  appointed  her  guardian,  and  that  the  Scotch 
tutors  and  curators  should  account  to  the  English 
guardian  for  all  the  rents  and  profits  of  the  Scotch 
estates.  The  Vice-Chancellor,  the  facts  being  laid 
before  him,  made  an  order  to  that  effect,  and  this  was 
affirmed  by  Lord  Chancellor  Lyndhurst.  Upon  an 
appeal  to  the  House  of  Lords,  the  order  appeared  to 
Lord  Brougham  and  to  myself  not  only  absurd,  but 
contrary  to  the  law  of  England  ;  wdiile  Lords  Lynd- 
hurst and  Cottenham  considered  the  proceeding  as  a 
matter  quite  of  course  and  highly  laudable,  although 
they  allowed  that  the  person  and  property  of  the 
infant  would  henceforth  be  under  the  control  of  the 
English  guardian,  and  that  during  her  minority  she 
would  not  without  his  consent  be  allowed  to  marry 
or  to  return  to  her  native  country.  Lord  Langdale, 
Master  of  the  EoUs,  being  called  in,  after  an  argu- 
ment in  his  hearing,  declared  himself  of  the  same 
opinion.  This  loas  a  most  lamentable,  hut  hy  no  means 
singular,  instance  of  the  narrow-mindedness  of  English 
lawyers.  Here  three  very  able  men,  competent  to 
form  a  sound  conclusion  upon  any  subject  to  which 
logical  reasoning  and  common  sense  are  to  be  applied. 


13  CURIOSITIES   OF 

were  satisfied  with  this  order,  because  it  is  laid  down 
in  the  books  of  practice  that,  as  soon  as  a  bill  is  filed 
to  make  an  infant  a  ward  of  the  court,  the  infant  is 
a  ward  of  the  court,  and  a  guardian  ought  to  be  ap- 
pointed, —  so  that  any  foreign  child,  male  or  female, 
brought  to  England  for  a  few  weeks  or  days,  with  a 
view  to  health  or  education  or  amusement,  may  be 
made  a  ward  of  Chancery  and  imprisoned  in  England 
till  twenty-one.  I  did  not  much  wonder  at  Cotten- 
ham  and  Langdale  countenancing  such  nonsense,  as 
they  had  never  been  freed  from  the  trammels  of  the 
Equity  draughtsman's  office  in  which  they  learned  to 
draw  bills  and  answers ;  but  when  I  found  that  the 
masculine  and  enlightened  mind  of  Lyndhurst  did 
not  revolt  at  it,  I  was  filled  with  astonishment  as 
well  as  dismay.  The  truth,  I  believe,  was,  that  he 
had  committed  himself  by  affirming  as  Chancellor, 
more  suo,  without  much  considering  whether  the 
order  appealed  from  was  right  or  wrong." 

THE  commencement  of  the  preface  to  the  third 
volume  of  Modern  Eeports,  p.  xiv,  is  curious : 

"  Gentlemen,  —  All  human  laws  are  natural  or 
civil."  "  This  puts  us  in  mind,"  says  a  very  recent 
writer,  "  of  a  humorous  introduction  to  death,  which 
we  have  somewhere  read  :  — 

'  Death  is  common  to  all. 
It  occurs  but  once.'  "  ^ 

1  Woolrych  Lives  of  Eminent  Serjeants,  VoL  L  p.  97  note. 


THE  LAW  REPORTERS.  19 

IT  seems  that  counsel  had  been  assigned  to  advise 
with  Algernon  Sidney,  although  they  were  not 
allowed  to  address  the  court.  When  Bamfield,  one 
of  these,  rose  as  amicus  curiae,  and  suggested  in 
arrest  of  judgment  that  there  was  a  material  defect 
in  the  indictment,  the  Lord  Chief  Justice  blandly 
observed,  "  We  have  heard  of  it  already ;  we  thank 
you  for  your  friendship,  and  are  satisfied."  He  then 
proceeded  to  pass  sentence  of  death  upon  the  pris- 
oner.^ 

THE  royal  fish  are  wliales  and  sturgeons,  which, 
when  either  cast  ashore  or  caught  near  the  coast, 
belong  to  the  Crown.  Blackstone  notices  a  curious 
distinction  made  by  the  old  legal  authorities,  which 
is  that  the  whale  is  to  be  divided  between  the  King 
and  the  Queen,  the  King  taking  the  head  and  the 
Queen  the  tail ;  the  reason  assigned  being,  that  the 
Queen  might  have  the  whalebone  for  her  wardrobe, 
although  in  fact  the  whalebone  is  found  in  the  head, 
and  not  in  the  tail.^ 


IN  Tremaine's  "  Placita  Coronse,"  p.  261,  is  a  pre- 
cedent of  an  indictment  against  a  counsellor,  for 
betraying  his  client's  cause  and  taking  fees  of  the 
other  side. 

1  9  Howell  State  Trials,  901. 

2  Forsyth  Constitutional  Law,  178. 


20  CURIOSITIES   OF 

IN  his  judgment  in  Moens  v.  Heyworth,  ^  Baron 
Alderson  observed :  "  I  consider  that  if  a  person 
makes  a  representation,  or  takes  an  oath,  of  that 
which  is  true,  if  he  intend  that  the  party  to  whom 
the  representation  is  made,  shoukl  not  believe  it  to  be 
true,  that  is  a  false  representation  ;  and  so  he  who 
takes  an  oath  in  one  sense  knowing  it  to  be  adminis- 
tered to  him  in  another,  takes  it  falsely.  This  may 
be  illustrated  by  an  anecdote  of  a  very  eminent 
ambassador.  Sir  Henry  Wotton,  who,  when  he  was 
asked  what  advice  he  would  give  to  a  young  diploma- 
tist going  to  a  foreign  court,  said,  '  I  have  found  it 
best  always  to  tell  the  truth,  as  they  will  never 
believe  anything  an  ambassador  says  ;  so  you  are  sure 
to  take  them  in.'  Now  Sir  Henry  "Wotton  meant  that 
he  should  tell  a  lie.  This,  no  doubt,  was  only  said  as 
a  witticism,  but  it  illustrates  my  meaning." 


IN  Montriou  v.  Jefferies,^  Abbott  C.  J.  in  summing 
up  said :  "  No  attorney  is  bound  to  know  all  the 
law.  God  forbid  that  it  should  be  imagined  that  an 
attorney,  or  a  counsel,  or  even  a  judge,  is  bound  to 
know  all  the  law." 

'•in 

THEEE  is  an  idiom   in   truth  which   falsehood 
never  can  imitate.^ 

1  10  M.  &  W.  158,  159.  2  2  C.  &  P.  p.  116. 

3  Lord  Chancellor  Napier  in  Low  v.  Holmes,  Drury  Cases  in  Chanc. 
Temp.  Napier,  323. 


THE  LAW  REPORTERS.  21 

IN  Sims  V.  The  State,^  wliicli  was  an  indictment 
for  larceny,  the  court  charged  the  jury  thus : 
"  Gentlemen  of  the  jury,  if  you  believe  the  evidence, 
you  will  find  tlie  defendant  guilty."  To  this  charge 
the  prisoner  very  j)roperly  excepted.  The  court  then 
said  to  the  jury :  "  Go  along,  and  find  the  defendant 
guilty!'  On  error  the  judgment  was  reversed,  the 
Chief  Justice  saying,  "  The  remark  made  to  the  jury 
after  the  charge  was  giveii  was,  to  say  the  least  of  it, 
a  great  violation  of  judicial  propriety,  and  no  doubt 
had  an  influence  with  the  jury,  that  did  or  might  well 
have  prejudiced  the  jorisoner."  We  think  no  one 
will  presume  to  question  this  conclusion  of  the 
learned  court. 


LORD  HAEDWICKE  says  2  that  Lord  Holt  him- 
self took  exceptions  to  the  indictment  in  the 
case  of  Rex  v.  Keite,  ^  in  order  to  avoid  the  question 
whether  a  venire  de  novo  may  issue,  in  a  case  of 
felony,  for  a  defective  verdict.  * 


LORD  HOBART  remarked  that  special  demurrers 
"  exist  that  law  may  be  an  art." 

1  43  Alabama,  33. 

2  Hex  V.  Bunidge,  3  P.  Wms.  p.  499. 
S  Rex  V.  Keite,  1  Ld.  Raym.  p.  144. 

4  JuLlginent  in  Campbell  v.  The  Queen,  11  Q.  B.  p.  839. 


22  CURIOSITIES   OF 

ME.  JUSTICE  HUTTON  charged  the  grand  jury 
at  Northampton,  with  regard  to  ship-money. 
Thomas  Harrison,  a  clergyman  of  that  county,  fool- 
islily  taking  imibrage  at  this  charge,  and,  "  while  the 
courts  of  Common  Pleas,  King's  Bench,  and  Chancery 
Avere  sitting,  rushed  to  the  bar  of  the  Common  Pleas, 
in  the  presence  and  audience  of  the  justices  there  sit- 
ting," and  cried  out  in  a  loud  voice,  "  I  do  accuse  Mr. 
Justice  Hutton  of  high  treason."  He  soon  suffered 
for  his  temerity.  He  was  indicted  for  the  offence, 
and  was  fined  £5000  and  imprisoned,  and  required  to 
make  his  submission  in  all  the  courts  at  Westminster. 
The  only  point  of  the  case  which  does  not  tell  to  the 
credit  of  the  judge  is,  according  to  his  own  report,^ 
that  he  also  brouglit  an  action  for  damages  against 
Harrison,  and  recovered  £10,000.^ 


IN"  "  The  Practice  Unfolded  "  of  the  High  Court  of 
Chancery,  pp.  31,  32,  ed.  1672,  are  two  cases 
which  are  models  of  accuracy  and  brevity  :  — 

Warwick  Hospital  contra  Feilding,  M.  9.  Jac,  the 
Lord  Chancellor  Ellesmere  said  that  churches  and 
hospitals  lightly  go  down  by  trials  in  the  country, 
therefore  stayed  by  injunction. 

Hill.  9.  Jac,  Duncumbe  contra  Piandall,  8.  Actions 
at  law  for  one  cause.  Lord  Egerton :  This  is  barratry ; 
stay  them  all  by  injunction. 

1  Hutton.  131.  2  Cro.  Car.  503. 


THE  LAW  REPORTERS.  23 

LOED  RAYMOND  thus  concludes  the  report  of 
the  case  of  the  Bishop  of  St.  David's  v.  Lucy, 
which  was  a  case  of  prohibition  clearly  within  the 
jurisdiction  of  the  House  of  Lords  :  "  Note,  that  Holt, 
Chief  Justice,  told  me,  that  if  the  Lords  had  been 
of  opinion  that  the  prohibition  ought  to  have  been 
granted,  he  never  would  have  granted  it."  ^ 


THE  widow  shall  have  all  her  apparel,  her  bed, 
her  copher,.  her  chains,  borders,  and  jewels,  by 
the  honourable  custom  of  the  realm,  except  her 
husband  unkindly  give  any  of  them  away.  Or  be  it 
in  debt,  that  it  cannot  be  paid  without  her  bed,  etc., 
yet  she  shall  have  her  necessary  apparel.^ 


IT  is  said  that  the  king  can  never  be  nonsuit ;  and 
does  not  appear  by  liis  attorney,  as  other  men  do, 
"  for  in  contemplation  of  law,"  says  Blackstone,  "  he 
is  always  present  in  court."  ^ 


IN  Ex  parte  Davis,*  the  agreement  in  controversy, 
which  was  in  the  form  of  a  bond,  was  designated 
by  the  Lord  Chancellor,  Lord  Westbury,  as  "  an 
ingenious  piece  of  mechanism." 

1  1  Ld.  Raym.  545.  3  Comm.  Vol  I.  p.  270. 

2  Xoy  Maxim?,  108.  4  9  Jur.  N.  S.  859,  861. 


24  CURIOSITIES    OF 

THE  great  sinecure  of  Chief  Clerk  of  the  Court 
of  King's  Bench,  compensated  by  a  pension  of 
£9000  a  year,  falling  vacant,  Sir  John  Holt  granted  it 
to  his  brother  Eoland,  and  the  question  arose  whether 
the  patronage  of  it  belonged  to  the  Chief  Justice  or 
the  King.  This  came  on  to  be  tried  by  a  trial  at 
bar  before  the  three  Puisne  Judges  and  a  jury.  A 
chair  was  placed  on  the  floor  of  the  court  for  Lord 
Chief  Justice  Holt,  on  which  he  sat  uncovered  near 
his  counsel.  It  was  proved  that  the  Chief  Justices 
of  the  King's  Bench  had  appointed  to  the  office  from 
the  earliest  times,  till  a  patent  was  granted  irregularly 
by  Charles  II.  to  his  natural  son,  the  Duke  of  Graf- 
ton ;  and  there  was  a  verdict  against  the  Crown, 
which  was  confirmed,  on  appeal,  by  the  House  of 
Lords.i 

vy 
yi\ 

ON"  the  trial  of  Lord  Lovat  for  treason.  Lord  Mans- 
field, Solicitor-General,  observed :  "  There  is  no 
calling  witnesses  without  facts ;  there  is  no  making 
a  defence  without  inntDcence ;  there  is  no  answering 
evidence  which  is  true."  ^ 


SAVILE'S  Eeports.  An  accomplished  legal  bibli- 
ographer says  that  "  this  book  seems  to  be  pretty 
much  in  the  condition  of  Pope's  '  most  women,'  and 
to  have  '  no  character  at  all.'  " 

1-  Bridgman  o.  Holt,  Shower  P.  C.  111.     Skinner,  354, 
2  18  Howell  State  Trials,  812. 


THE  LAW  REPORTERS.  25 

IN  Wright  V.  Crump,^  Holt  C.  J.  states  the  case  of 
the  mayor  of  Hereford,  who  claimed  title  to  a 
house  in  Hereford,  where  a  court  was  held,  and  he  hy 
charter  was  sole  judge  of  the  court.  In  order  to  recover 
the  house,  he  made  a  lease  of  it  to  A.,  that  A.  might 
bring  ejectment  before  him.  A.  did  so,  and  the 
mayor,  says  Lord  Holt,  "  in  effect,  was  judge  in  his 
own  cause,  and  he  gave  judgment  for  his  own  lessee  " ; 
and  upon  complaint  in  this  matter,  in  the  King's 
Bench,  the  court  granted  an  attachment,  and  the 
mayor  was  laid  by  the  heels  ;  ^  though  it  is  said  by 
one  of  the  reporters,  "  he  got  off  the  easier  for  that 
he  had  been  an  old  cavalier."  ^ 


NO  wonder  that  Bacon  should  have  commended 
"  the  excellent  brevity  of  the  old  Scots  acts." 
Here  is  a  specimen,  an  actual  statute  at  large,  com- 
prehensive, and  worth  a  small  library  of  modern 
statute-books,  if  it  was  duly  enforced :  "  Item,  it  is 
statute  and  ordained,  that  all  our  Sovereign  lord's 
lieges  being  under  his  obeisance,  and  especially  the 
isles,  be  ruled  by  our  Sovereign  lord's  own  laws,  and 
the  common  laws  of  the  realm,  and  none  other  laws." 

1  2  Ld.  Raym.  766.     1  Salk.  201.     6  Cush.  332. 

2  To  "lay  by  the  heels"  was  the  technical  expression  for  committing 
to  prison.  The  Chief  Justice  says  to  Falstaff :  "  To  punish  you  by  the  keels 
would  amend  the  attention  of  your  ears;  and  I  care  not  if  I  do  become 
your  physician."  —  Second  Part  of  King  Henry  IV.  Act  I.  Scene  2. 

8  7  iMod.  1.     7  Mass.  209. 


26  CURIOSITIES   OF 

READ  V.  Legard  was  an  action  brought  for  ne- 
cessaries supplied  to  the  defendant's  wife  at 
a  time  when  he  was  confined  in  an  asylum  as  a 
dangerous  lunatic.  In  the  course  of  the  argument, 
Alderson  B.  inquired  of  the  plaintiff's  counsel  if 
they  should  not  apply  to  the  Court  of  Chancery 
for  relief.  They  replied :  "  While  the  grass  is  grow- 
ing, the  steed  starves;  while  the  Court  of  Glian- 
cery  is  deciding  the  cause,  the  woman  might  starve." 
The  court  decided  that  the  action  could  be  main- 
tained.^ 

/•IN 

IN"  the  celebrated  judgment  of  Lord  Denman  in 
O'Connell  v.  The  Queen,^  is  this  passage :  "  If  it 
is  possible  that  such  a  practice  as  that  which  has 
taken  place  in  the  present  instance  should  be  allowed 
to  pass  without  a  remedy,  trial  by  jury  itself,  instead 
of  being  a  security  to  persons  who  are  accused,  wiU 
be  a  delusion,  a  mochcry,  and  a  snare" 


"V'VT'HEEE  a  judge  omitted,  in  pronouncing  sen- 
V  V  tence  on  a  conviction  for  murder,  to  order  that 
the  bodies  of  the  prisoners  should  be  buried  within 
the  precincts  of  the  jail,  as  directed  by  the  statute,  it 
was  determined  by  six  judges  that  the  sentence  was 
illegal  and  the  prisoners  were  discharged.^ 

1  15  Jur.  494.     See  Shaw  v.  Thompson,  16  Pick.  198,  200. 

2  11  Clark  &  Finnelly,  p.  351. 

8  The  Queen  v.  Hartuett,  Jebb  C.  C.  302. 


THE  LAW  REPORTERS.  27 

SOUTHOLD  brought  an  action  against  Daunston 
for  speaking  these  words  :  "  Southold  hath  been 
in  bed  with  Dorchester's  wife,"  whereby  he  lost  his 
marriage.  Serjeant  Bing  moved  unsuccessfully  that 
these  words  are  not  actionable ;  for  it  may  be  he  was 
in  bed  with  her  when  he  was  a  child,  she  being  his 
nurse,  or  it  may  be  that  her  husband  was  in  bed 
betSvixt  them;  and  words  shall  be  taken  in  mitiori 
sensu  when  any  construction  can  be  made  to  help  it. 
"  But  Jones  and  myself  conceived,"  says  Croke,  "  that 
such  foreign  intendments  as  have  been  alleged  shall 
not  be  taken,  but  it  shall  be  adjudged  ex  effectu 
dicendi,  which  is  liere  to  hinder  him  of  his  marriage, 
as  it  is  now  found  by  the  verdict ;  but  they  would 
advise  thereof.  And  it  was  afterwards  adjudged  for 
the  plaintiff  ^ 

MR.  JUSTICE  RICHARDSON,  in  delivering 
the  opinion  in  a  case^  relating  to  justices  of 
the  peace,  said  :  "  Though  I  cannot  add  with  the  good 
Prior  (speaking  of  women)  — 

"  'Let  all  their  ways  be  unconfined,' 

yet  I  will  say  with  him,  — 

"  '  Be  to  their  faults  a  little  blind, 
And  to  their  virtues  very  kind.'  "3 

1  Southold  V.  Daunston,  Cro.  Car.  269. 

2  Reid  f.  Hood,  2  Nott  &  McCord,  p.  172. 

8  Another  reading  of  this  passage  which  is  quoted  from  "  An  English 
Padlock,"  is  this:  — 

"  Be  to  her  virtues  very  kind; 
Be  to  her  faults  a  little  blind." 


28  CURIOSITIES   OF 

AN  old  decision  is  thus  stated  by  Hon.  William 
M.  Evarts:^  "The  Year-Book  contains  the 
following  story :  It  seems  that  somebody  had  been  so 
rude  as  to  call  a  clergyman  a  fool,  with  a  prefixed  ex- 
pletive, which  gave  point  to  the  stigma  wrung  from 
the  arsenals  of  theological  denunciation,  and  not  from 
the  technical  words  of  the  law.  Now,  in  an  action 
of  slander,  the  point  came  up  distinctly,  —  for,  with- 
out special  damage  proved,  we  hold  such  words  inju- 
rious only  when  they  injure  the  party  spoken  of  in 
his  profession,  —  and  the  court  held  that  it  was  not 
actionable,  for  it  did  not  injure  the  clergyman  in  his 
profession.  But  the  court  said  that  had  it  been 
of  the  lawyer,  or  of  the  medical  profession,  it  would 
have  been  otherwise.  Or,  as  the  old  law  French 
more  tersely  has  it,  Parce  que  on  pent  estre  bon  par- 
son et  gTand  fou;  d'un  attorney  aliter." 


IN  Eiddle  v.  Welden  ^  it  was  decided  that  the  goods 
of  a  boarder  are  not  liable  to  be  distrained  for 
rent  due  by  the  keeper  of  a  boarding-house.  Chief 
Justice  Gibson,  in  delivering  the  opinion  of  the  court, 
said  that  Falstaff  "  speaks  with  legal  precision  when 
he  demands,  '  Shall  I  not  take  mine  ease  in  mine 
mn  ? 

1  American  Law  Review,  Vol.  III.  p.  343. 

2  5  Wharton,  15. 


THE  LAW  REPORTERS.  29 

IX  a  recent  case  ^  the  Court  of  Queen's  Bench  were 
called  upon  to  give  a  judicial  construction  to  the 
word  "  team."  In  the  course  of  the  argument,  Mr. 
Justice  Blackburn  cited  "Wordsworth's  use  of  the 
word  :  — 

"  Yes,  let  my  master  fume  and  fret, 
Here  am  I,  with  my  horses  yet  ! 
My  jolly  Team,  he  finds  that  ye 
Will  work  for  nobody  but  me." 

The  IFaggoiUT,  Canto  I. 

And  also  Shakespeare's.  He  describes  Queen  Mab 
as  "  drawn  with  a  team  of  little  atomies."  ^  —  Borneo 
and  Juliet.   Act  I.  Scene  4. 

And  Mr.  Justice  Crompton  cited  the  following  old 
epigram  :  — 

"  Giles  Jolt,  as  sleeping  in  his  cart  he  lay. 
Some  waggish  pilf'rers  stole  his  tca'ni  away. 
Giles  wakes  and  cries,  '  What 's  here,  odds  Dickens  !  what  ? 
Why,  how  now,  am  I  Giles  or  am  I  not  ? 
If  he,  I  've  lost  six  geldings  to  my  smart ; 
If  not,  odds  buddikins  !  I  've  found  a  cart.'  " 

Elccjant  Extracts,  Vol.  IV.  p.  296.     London,  1791. 

And  in  his  judgment  he  said :  "  It  is  not  made  out 
to  my  satisfaction  that  tlie  word  'team'  implies, 
besides  horses,  a  cart  or  vehicle  of  some  kind.  I 
think  tliat  according  to  the  modern  use  of  the  word 
it  does  not.     Thus  you  speak  of  the  team  a  man 

1  Duke  of  Marlborough  v.  Osborn,  5  Best  &  Smith,  67  (1864). 

2  It  was  said  at  the  bar,  that  "  a  team  of  counsel  means  a  number 
of  counsel  following  one  after  another." 


30  CURIOSITIES   OF 

worked  a  coacli  with,  and  if  the  word  'team'  were 
confined  to  lines  of  animals,  a  line  of  pigs  would 
afford  a,  ludicrous  instance." 


BY  St.  Westminster  the  First,  3  Edw.  II.  A.  D. 
1276,  the  time  of  memory  was  limited  to  the 
reign  of  Eichard  I.  July  6,  1189.  "And  for  all  prac- 
tical purposes,"  said  Mr.  Justice  "Wilde,^  "it  might  as 
well  be  reckoned  from  the  time  of  the  creation." 
But  in  1868  this  limitation  was  practically  applied 
in  a  well-considered  case  in  the  Court  of  Exchequer 
Chamber.  "  The  true  principle  of  the  law  applicable 
to  this  question,"  said  Kelly  C.  B.,  "is,  that  when 
a  fee  has  been  received  for  a  great  length  of  time,  the 
right  to  which  could  have  had  a  legal  origin,  it  may 
and  ought  to  be  assumed  that  it  was  received  as 
of  right  during  the  whole  period  of  legal  memory, 
that  is,  from  the  reign  of  Eichard  I.  to  the  present 
time,  unless  the  contrary  is  proved.  In  this  case, 
the  right  to  these  fees  may  have  had  a  legal  origin 
before  the  time  of  memory  ;  and  the  evidence  that 
they  have  been  taken  in  modern  times,  during  a 
period  of  nearly  fifty  years,  leads  to  the  presumption 
that  they  were  lawfully  taken  in  the  time  of  Eichard 
I.  unless  the  payment  at  that  time  be  disproved."  ^ 

1  Coolidge  V.  Learned,  8  Pick.  p.  508. 

2  Bryant  v.  Foot,  Law  Rep.  3  Q.  B.  497,  505.     See  the'  admiraWe 
judgment  of  Mr.  Justice  Keating,  p.  512. 


2HE  LAW  REPORTERS.  31 

IN"  1772  Lord  Mansfield  decided  that  there  was  no 
property  in  slaves,  and  in  answer  to  the  plea 
of  the  vast  property,  amounting  to  millions,  at  issue 
on  the  question,  he  uttered  the  memorable  maxim : 
"  Fiat  Justitia  ruat  Ccelum."  ^  In  1768,  in  an  equally 
celebrated  case,  he  made  use  of  the  same  maxim.^ 

Sir  Thomas  Browne  has,  in  his  "  Keligio  Medici,"  ^ 
A.  D.  1642,  "Ptuat  cadum  fiat  voluntas  tua."  A  re- 
cent writer  *  says  the  phrase  vised  by  Lord  Mansfield 
is  found  in  Ward's  "  Simple  Cobbler  of  Aggawam  in 
America,"  the  first  edition  of  which  was  printed  in 
1645. 

w 

IlSr  The  Queen  v.  Tutchin,^  Powys  J.  and  Gould  J. 
having  delivered  opinions  one  way,  and  Powell 
J.  and  Holt  C.  J.  the  other,  the  report  concludes  with 
this  note :  "  Powys  J.  recanted  instanter,  and  Gould  J. 
hsesitabat." 


FILOW'S  Case,  Year-Book,  12  Hen.  YIII.  3,  pi.  3. 
Eliot  J.  went  so  far  in  his  depreciation  of  dogs, 
as  to  lay  down  that  dogs  are  A^ermin,  and  for  that 
reason  the  Church  would  not  debase  by  taking  tithes 
of  them.® 

1  Somerset's  Case,  Lofft,  p.  17. 

2  The  King  v.  Wilkes,  4  Burrow,  p.  2562. 

3  Part  Second,  Sec.  XI. 

4  Bartlett.     Familiar  Quotations,  p.  589,  5th  ed. 

5  6  Mo-a.  p.  287. 

6  1  Smith  L.  C.  395,  6th  London  ed. 


32  CURIOSITIES   OF 

THIS  is  a  terse  description  of  "  The  two  supream 
Laws  of  tlie  Realm,"  found  in  "  The  Practice 
Unfolded,"  of  the  High  Court  of  Chancery,  p.  53,  ed. 
1672  :  "  The  Princes  of  this  Land  have  appointed  2 
supream  seats  of  Government  within  this  Land ;  the 
one  of  Justice,  wherein  nothing  but  the  strict  letter 
of  the  Law  is  observed  ;  and  the  other  of  Mercy,  which 
in  the  rigour  of  the  Law  is  tempered  with  the  sweet- 
ness of  Equity,  the  which  is  nothing  but  Mercy  quali- 
fying the  rigour  of  Justice." 


IN"  a  case  in  the  Year-Book,  38  Edw.  III.  pi.  14,  the 
House  of  Lords  commanded  the  Court  of  Com- 
mon Pleas  to  give  a  judgment.  The  Chief  Justice 
refused.  Afterwards,  in  his  absence,  the  others  com- 
plied, and  gave  judgment.  The  Court  of  King's  Bench 
afterwards  examined  the  proceedings  of  the  House  of 
Lords,  and  adjudged  them  void.^ 


IN  "  The  Practice  Unfolded  "  of  the  High  Court  of 
Chancery,  ed.  1672,  p.  41,  is  this  case :  A  vexa- 
tious plaintiff  in  forma  pauperis,  and  not  able  to  pay 
costs  upon  the  dismission,  hath  been  ordered  by  the 
Lord  Egerton  to  be  whipped,  upon  the  equity  of  the 
St.  23  Hen.  VIIT.  cap.  15,  and  no  more  to  be  admitted 
in  forma  pauperis. 

1  12  Mod.  p.  65. 


THE  LAW  REPORTERS.  33 

YEAE-BOOK,  Mich.  10  Hen.  VI.  fol.  8  h,  pi.  30 
(A.  D.  1431).  The  Prior  of  W.  brings  writ  on 
the  Statute  of  Labourers 'against  a  chaplain  for  not 
chanting  the  mass.  Strangeways  J. :  "  The  writ  is 
not  maintainable  by  the  statute;  for  you  cannot 
compel  a  chaj^lain  to  sing  in  mass ;  for  that  at  one 
time  he  is  disposed  to  sing  it,  and  at  another  not ; 
wherefore  you  cannot  compel  him  by  the  statute." 
This  case  was  commented  on  by  some  of  the  judges 
in  the  celebrated  case  of  Lumley  v.  Gye.^  The  plain- 
tiff, the  proprietor  of  the  Queen's  Theatre,  had  con- 
tracted with  Jolianna  Wagner,  a  celebrated  opera- 
singer,  to  sing  in  the  theatre  for  a  certain  time,  with 
a  condition  tliat  she  should  not  sing  elsewhere  dur- 
ing the  term  without  the  plaintiff's  consent  in  waiting. 
The  question  was,  whether  the  plaintiff  could  main- 
tain an  action  against  the  proprietor  of  another 
theatre,  who  maliciously  procured  Miss  Wagner  to 
abandon  her  contract  entirely.  And  a  majority  of 
the  Court  of  Queen's  Bench  held  that  the  action 
would  lie.  The  judgment  was  delivered  in  June 
1853.  In  the  previous  April  the  plaintiff  filed  a  bill 
against  Miss  Wagner,  to  restrain  her  from  singing  at 
Gye's  theatre.^  At  this  time  Lord  St.  Leonards  held 
the  Great  Seal.  His  lordship  decided  that  the  two 
positive  and  negative  stipulations  in  the  contract 
above  named  constituted  only  one  contract,  and  that 

1  2  El.  &  Bl.  216. 

2  Lumley  v.  Wagner,  1  De  Gex,  Macnaghten  &  Gordon,  604,  619. 

2*  c 


34  CURIOSITIES   OF 

the  court  could  not  enforce  performance  of  the  wliole 
contract.  "  It  is  true/'  said  the  astute  Chancellor, 
"that  I  have  not  the  means  of  compelling  the  lady  to 
sing ;  but  she  has  no  cause  of  .complaint  if  I  compel 
her  by  injunction  to  abstain  from  the  commission  of 
an  act  which  she  has  bound  herself  not  to  do,  and 
thus,  possibly,  coinj)cl  her  to  i)erf@rni  her  engagement." 


THE  rule  excluding  hearsay  evidence,  or,  rather, 
the  mode  in  which  that  rule  is  frequently  mis- 
understood in  courts  of  justice,  is  amusingly  carica- 
tured by  Dickens  in  his  report  of  the  case  of  Bar- 
dell  V.  Pickwick :  — 

"  I  believe  you  are  in  the  service  of  Mr.  Pickwick, 
the  defendant  in  this  case.  Speak  up,  if  you  please, 
Mr.  Weller." 

"I  mean  to  speak  up,  sir,"  replied  Sam.  "  I  am  in 
the  service  o'  that  'ere  gen'l'man,  and  wery  good  ser- 
vice it  is." 

"  Little  to  do,  and  plenty  to  get,  I  suppose  ? "  said 
Sergeant  Buzfuz,  with  jocularity. 

"  0,  quite  enough  to  get,  sir,  as  the  soldier  said 
ven  they  ordered  'ini  three  'undred  and  fifty  lashes," 
replied  Sam. 

"  You  inust  not  tell  us  ivhat  the  soldier,  or  any  other 
man,  said,  sir,"  interposed  the  judge;  "it's  not  evi- 
dence." 

"Wery  good,  my  Lord,"  replied  Sam. 


THE  LA  W  REPORTERS.  35 

LOED  COKE,  in  his  "Fourth  Institute,"  com- 
menting on  the  jurisdiction  and  power  of  justices 
of  the  peace,  says,  "  It  is  such  a  form  of  subordinate 
government  l\)r  the  tranquillity  and  quiet  of  the 
realm  as  no  part  of  the  Christian  world  hath  the  like, 
if  the  same  be  duly  executed."  Shakespeare's  picture 
of  a  justice  of  the  peace,  in  the  opening  scene  of 
"-The  jNIerry  Wives  of  Windsor,"  certainly  differs 
from  the  office  so  unduly  commended,  in  language  so 
extravagantly  flattering,  by  the  Lord  Chief  Justice. 
It  has  been  well  said  that  Shakespeare's  picture 
"is  so  truthful  as  to  be  hardly  exaggerated  or  carica- 
tured. The  original  of  the  picture  is  confined  to  no 
age." 


ACCOEDIISTG  to  the  memorandum  of  a  contem- 
poraneous reporter,  Mr.  Justice  Heath  refused 
knighthood,  saying,  "  I  am  John  Heath,  Esquire,  one 
of  his  Majesty's  Justices  of  the  Court  of  Common 
Bench,  and  so  will  die.''^ 


A  CHAIN"  of  authorities   Milton   calls   "a  par- 
oxysm of  citations." 

1  And  Shallow,  in  answer  to  Bardolph's  inquiry,  "Which  is  Justice 
Shallow?  "  answered,  "  I  am  Robert  Shallow,  sir;  a  poor  esquire  of  this 
county,  and  one  of  the  King's  justices  of  the  peace."  —  Second  Part  of 
King  Henry  IV.  Act  III.  Scene  2. 


36  '  CURIOSITIES   OF 

IIST  deciding  upon  the  validity  or  invalidity  of 
deeds,  courts  of  equity  act  upon  more  enlightened 
principles  than  courts  of  law ;  and  whenever  it  is 
shown  to  them  that  any  person  by  donation  derives 
a  benefit  under  a  deed  to  the  prejudice  of  another 
person,  —  and  the  more  especially  so,  if  any  confi- 
dential or  fiduciary  relation  subsists  between  the 
parties,  —  they  so  far  presume  against  the  validity  of 
the  instrument  as  to  require  some  proof,  varying  in 
amount  according  to  circumstances,  of  the  absence 
of  anything  approaching  to  imposition,  overreacliing, 
undue  influence,  or  unconscionable  advantage.  For 
example,  if  a  deed  of  gift,  or  other  disposition  of 
property,  be  made  in  favor  of  a  husband  by  a  wife,  a 
court  of  equity  will  regard  the  matter  with  jealous 
suspicion,  and  will  either  set  aside  the  instrument 
as  conclusively  void,  or  wiU  throw  upon  the  person 
benefited  the  burden  of  establishing,  beyond  all  rea- 
sonable doubt,  the  perfect  fairness  and  honesty  of  the 
entire  transaction.^  A  grotesque  attempt  has  been 
made  in  Ireland  to  extend  this  salutary  doctrine  to  a 
case  which  assuredly  its  framers  never  contemplated. 
A  woman,  while  living  in  adultery  with  a  married 
man,  had  in  the  ardor  of  her  affection  assigned  some 
of  her  property  to  secure  a  debt  which  was  owing  by 
her  paramour.  Wlien  her  passion  cooled,  her  gener- 
osity seems  to  have  cooled  also ;  and  after  the  lapse 
of  a  short  period  she  had  the  hardihood  to  apply 

1  1  Taylor  Ev.  §  129. 


THE  LAW  REPORTERS.  37 

to  the  Court  of  Chancery  to  set  aside  her  assignment 
on  the  ground  of  undue  influence.  Her  prayer  was 
of  course  rejected,  the  court  holding  that  the  doctrine 
on  which  she  relied  for  relief  was  only  applicable 
when  some  lawful  relation  had  been  contracted  be- 
tween the  parties.^ 


IN  "The  Practice  Unfolded"  of  the  High  Court  of 
Chancery,  p.  5,  ed.  1672,  is  this  rule  of  equity 
pleading  which  obtains  at  the  present  day :  — 

"  No  councellour  ought  to  put  his  hand  to  any  bill, 
answer,  or  other  pleading,  lyiless  it  be  drawn,  or  at  least 
perused  by  himself  in  the  paper  draught,  before  it 
be  ingrossed,  and  they  are  to  take  care  that  the  same 
be  not  stuffed  with  repetition  of  deeds,  writings,  or 
records  in  base  verba ;  but  the  effect  and  substance  of 
so  much  of  them  only  as  is  pertinent  and  material  to 
be  set  down,  and  that  in  brief  terms,  without  long 
and  needless  traverses  of  points  not  traversable,  tau- 
toligies,  multiplications  of  words,  or  other  imperti- 
nencies,  occasioning  needless  prolixity,  that  the  an- 
cient brevity,  succintness  in  bills,  and  other  pleadings 
may  be  restored  and  observed." 

And  on  p.  30  is  a  rule  of  practice  which  ought 
to  obtain  at  the  present  day :  — 

"  The  councel  that  misinforms  the  court  in  his  mo- 
tions, or  moves  not  informing  the  former  order  in  the 

1  Hurgreave  v.  Everard,  6  Irish  Eq.  Rep.  N.  S.  278. 


38  CURIOSITIES   OF 

cause,  liath  had  his  order  so  misgotten,  thereby  va- 
cated, and  costs  awarded  to  be  paid  by  himself  or  his 
client,  by  liimself  if  it  lay  in  him  to  have  informed 
himself  better,  or  else  by  the  client  who  misinformed 
his  councel,  and  while  this  course  was  used  little  was 
there  of  references  to  consider  of  the  truth  of  such  in- 
formations. The  councellor  in  respect  of  his  credit, 
and  the  client  for  fear  of  such  costs,  being  then  careful 
not  to  misinform  in  any  thing  which  they  were  sure  to 
hear  of  again  by  motion  of  the  adverse  party  to  the 
next  motion-day." 

THE  Supreme  Court  of  the  United  States  does  not 
consider  "  codes  "  to  be  the  embodiment  of  true 
progress  ;  or  that  "  wisdom  wdll  die  "  with  those  tliat 
make  them.  With  reference  to  the  common  law  of 
Special  Pleading,  Mr.  Justice  Grier  observed :  "  This 
system,  matured  by  the  wisdom  of  ages,  founded  on 
principles  of  truth  and  sound  reason,  has  been  ruth- 
lessly abolished  in  many  of  our  States,  who  have 
rashly  substituted  in  its  place  the  suggestions  of 
sciolists  who  invent  new  codes  and  systems  of  plead- 
ing to  order.  But  this  attempt  to  abolish  all  species, 
and  establish  a  single  genus,  is  found  to  be  beyond 
the  power  of  legislative  omnipotence.  The  result  of 
these  experiments,  so  far  as  they  have  come  to  our 
knowledge,  has  been  to  destroy  the  certainty  and 
simplicity  of  all  pleadings,  and  introduce  on  the 
record  an  endless  wrangle  in  writing,  perplexing  to 


THE  LAW  REPORTERS.  39 

the  court,  delaying  and  impeding  the  administration 
of  justice."  ^  And  by  way  of  illustrating  the  absurd- 
ities into  which  such  a  course  had  actually  led,  the 
court  names  a  case  in  which  (at  the  end  of  a  chaos 
of  so-called  pleadings)  the  jury  gave  a  verdict  for 
$  1,200,  and  the  court  rendered  judgment  for  four 
negroes? 

SOMETHING-  more  than  the  ceremony  of  marriage 
was  necessary  to  give  the  wife  a  right  of  dower, 
by  the  laws  of  Normandy.  "  C'est  au  coucher  que  la 
femme  gagne  son  douaire  "  —  "  il  faut  qu'elle  couche 
avec  son  mari  pour  acquerer  son  douaire  c'est  ce  qui 
donne  la  derniere  perfection  a  ce  droit."  ^ 


IN  Noy,  48,  a  precedent  is  cited  in  these  words : 
"The  jurors  acquitted  a  prisoner  contrary  to 
their  evidence,  and  for  that  they  were  fined  and  im- 
prisoned, and  bound  for  the  good  behavior  of  the 
prisoner  during  his  life." 

IN  the  index  to  the   last  London  edition  (A.  D. 
1867)   of  Smith's   Leading   Cases,  we   find   this 
title :  "  Eagle's  Eyes,  Court  will  not  always  look  with." 

1  McFaul  V.  Ramsey,  20  Howard,  p.  525.  And  see  the  caustic  observa- 
tions of  the  same  acute  judge  in  Farui  v.  Tesson,  1  Black,  315. 

a  Preface  to  the  Fourth  Edition  of  Gould  on  Pleading. 

8  Flaust,  Coutume  de  Normandie,  528,  cited  1  Washburn  on  Real  Prop- 
erty, 197. 


40  CURIOSITIES   OF 

ON  the  danger  of  admitting  presumptive  evidence 
of  death,  Lord  Langdale  was  in  the  habit  of  re- 
ferring to  a  very  singular  case,  which  happened  within 
his  own  knowledge  while  he  was  on  the  bench.  A 
sum  of  money  in  court  was  subject  to  a  trust  for 
a  particular  individual  for  life,  and  after  his  death 
was  to  he  divided  between  certain  parties.  These 
parties  petitioned  for  payment  of  the  fund  to  them, 
on  the  ground  that  the  individual  in  question,  the 
tenant  for  life,  was  dead.  No  positive  evidence  could 
be  adduced  of  his  death ;  but  it  was  said  that  his 
death  must  be  presumed,  inasmuch  as  the  evidence 
showed  that  he  had  gone  abroad  some  twenty  or 
thirty  years  ago,  under  circumstances  of  difficulty, 
and  that  no  human  being  had  heard  any  tidings 
of  him  from  that  day  to  this. 

This  did  not  satisfy  Lord  Langdale,  and  he  desired 
the  case  to  stand  over,  intimating  tliat  if  further  evi- 
dence could  be  produced  to  corroborate  the  already 
strong  presumption,  he  would  attend  to  it.  Addi- 
tional affidavits  were  accordingly  filed,  after  the  lapse 
of  some  time,  and  the  case  then  appeared  so  strong 
that  he  made  the  order  for  division  of  the  fund  as 
prayed.  The  extraordinary  portion  of  the  case  re- 
mains to  be  told,  —  the  order,  when  drawn  up  accord- 
ing to  his  lordship's  directions,  was  carried  to  the 
proper  office  to  be  entered ;  and  the  clerk,  whose 
duty  it  was  to  enter  it,  turned  out  to  be  the  very 
individual  on  whose    presumed  death  the  order  for 


THE  LAW  REPORTERS.  41 

payment  was  made.  It  seems  that  in  early  life  he 
had  been  involved  in  scrapes  and  difficulties,  which 
led  him  to  fly  his  country,  and  to  keep  his  residence 
and  career  a  secret  from  all  his  relatives,  —  that 
he  had  returned  in  tune,  under  a  fictitious  name, 
to  England,  where  he  at  length  obtained  a  situa- 
tion in  the  office  in  question,  but  without  making 
himself  known  to  any  one,  —  that  he  was  ignorant 
of  his  right  in  the  fund  in  question,  and  that,  but  for 
the  remarkable  accident  just  related,  he  would  have 
been  deprived  of  these  rights,  and  the  fund  would 
have  been  prematurely  given  over  to  persons  not 
then  entitled  to  it. 


ABOUT  the  year  1554,  Henry  VIII.  manumit- 
ted two  of  his  villeins  in  these  words,  which 
are  not  without  their  application  at  the  present  day : 
"Whereas  God  created  aU  men  free,  but  afterwards 
the  laws  and  customs  of  nations  subjected  some  under 
the  yoke  of  servitude,  we  think  it  pious  and  merito- 
rious with  God  to  manumit  Henry  Knight,  a  taylor, 
and  Herle,  a  husbandman,  our  natives,  as  being  born 
within  the  manor  of  Stoke  Clymmysland,  in  our 
county  of  Cornwall,  together  with  all  their  goods, 
lands,  and  chattels  acquired  or  to  be  acquired,  so  as 
the  said  persons  and  their  issue  shaU  from  henceforth 
by  us  be  free  and  of  free  condition."  ^ 

1  Barrington  on  the  Statutes,  p.  305,  5tli  ed. 


42  CURIOSITIES  OF 

THOUGH  evidence  addressed  to  the  senses,  if 
judiciously  employed,  is  obviously  entitled  to 
the  greatest  weight,  care  must  be  taken  not  to  push 
it  beyond  its  legitimate  extent.  The  minds  of  jury- 
men, especially  in  the  remote  provinces,  are  grievously 
open  to  prejudices,  and  the  production  of  a  bloody 
knife,  a  bludgeon,  or  a  burnt  piece  of  rag,  may  some- 
times, by  exciting  the  passions  or  enlisting  the  sympa- 
thies of  the  jury,  lead  them  to  overlook  the  necessity 
of  proving  in  what  manner  these  articles  are  con- 
nected witli  the  criminal  or  the  crime  ;  and  they  con- 
sequently run  no  slight  risk  of  arriving  at  conclusions, 
which,  for  want  of  some  link  in  the  evidence,  are  by 
no  means  warranted  by  the  facts  proved.^  The  abuse 
of  this  kind  of  e^ddence  has  been  a  fruitful  theme  for 
the  satirist ;  and  many  amusing  illustrations  of  its 
effect  might  be  cited  from  the  best  authors.  Shake- 
speare makes  Jack  Cade's  nobility  rest  on  this  founda- 
tion ;  for  Jack  Cade  having  asserted  that  the  eldest 
son  of  Edmund  Mortimer,  Earl  of  March,  "  was  by  a 
beggarwoman  stolen  away,"  "became  a  bricklayer 
when  he  came  to  age,"  and  was  his  father,  one  of  the 
rioters  confirms  the  story  by  saying,  "  Sir,  he  made  a 
chimney  in  my  father's  house,  and  the  tricks  are  alive 
at  this  day  to  testify  it;  therefore  deny  it  not."^ 
Archbishop  Whately,  who  makes  use  of  the  above 
anecdote  in  his  diverting  "  Historic  Doubts  relative  to 

1  1  Taylor  Ev.  §  501. 

2  Part  Second  of  King  Henry  VI.  Act  IV.  Scene  2. 


THE  LAW  REPORTERS.  43 

Napoleon  Bonaparte,"  adds :  "  Truly  this  e\ddence  is 
such  as  country  people  give  one  for  a  story  of  appari- 
tions ;  if  you  discover  any  signs  of  incredulity,  they 
triumphantly  show  the  very  house  which  the  ghost 
haunted,  the  identical  dark  corner  where  it  used  to 
vanish,  and  perhaps  even  the  tombstone  of  the  person 
whose  death  it  foretold."  So,  in  the  interesting  story 
of  "  The  Amber  Witch,"  the  poor  girl  charged  with 
witchcraft,  after  complaining  that  she  was  the  victim 
of  the  sheriff,  who  wished  to  do  "wantonness  with 
her,"  added,  that  he  had  come  to  her  dungeon  the 
night  before  for  that  purpose,  and  had  struggled  with 
her,  "whereupon  she  had  screamed  aloud,  and  had 
scratched  him  across  the  nose,  as  might  yet  be  seen, 
whereupon  he  had  left  her."  To  this  the  sheriff  re- 
plied, "that  it  was  his  little  lap-dog,  called  Below, 
which  had  scratched  him  while  he  played  Avith  it 
that  very  morning,"  and,  having  ]3rodiiccd  the  dog,  the 
court  were  satisfied  with  the  truth  of  his  explana- 
tion. ^ 

LOED  MANSFIELD,  while  confessing  a  wish  for 
popularity,  added,  in  words  which  cannot  be  too 
often  quoted,  "  But  it  is  that  popularity  which  follows, 
not  that  which  is  run  after;  it  is  that  popularity 
which,  sooner  or  later,  never  fails  to  do  justice  to  the 
pursuit  of  noble  ends  by  noble  means."  ^ 

1  The  Amber  Witch,  translated  by  Lady  Duff  Gordon,  pp.  78  -  80. 

2  The  King  v.  Willies,  4  Burrow,  2562. 


44  CURIOSITIES   OF 

THE  rigid  enforcement  of  the  rule  regarding  pro- 
fessional communications  no  doubt  operates  oc- 
casionally to  the  exclusion  of  truth ;  but  if  any  law 
reformer  feels  inclined  to  condemn  the  rule  on  this 
ground,  he  will  do  well  to  reflect  on  the  eloquent  lan- 
guage of  the  Lord  Justice  Knight  Bruce,  who,  while 
discussing  this  subject  on  a  recent  occasion,  felicitously 
observed :  "  Truth,  like  all  other  good  things,  may  be 
loved  unwisely  —  may  be  pursued  too  keenly  —  may 
cost  too  much.  And  surely  the  meanness  and  the  mis- 
chief of  prying  into  a  man's  confidential  consultations 
with  his  legal  adviser,  the  general  evil  of  infusing  re- 
serve and  dissimulation,  uneasiness,  suspicion,  and  fear, 
into  those  communications  which  must  take  place, 
and  which,  unless  in  a  condition  of  perfect  security, 
must  take  place  uselessly  or  worse,  are  too  great  a 
price  to  pay  for  truth  itself."  ^ 


THEEE  is  no  precise  rule  respecting  the  degree  of 
intelligence  and  knowledge  which  will  render  a 
child  a  competent  witness ;  and  in  these  cases  much 
must  ever  depend  upon  the  good  sense  and  discretion 
of  the  judge.  The  utter  want  of  discretion  in  dealing 
with  this  subject,  which  is  occasionally  evinced  by 
the  inferior  functionaries  of  the  law,  has  been  admi- 
rably ridiculed  by  Dickens,  in  his  "  Bleak  House." 
A  little  crossing-sweeper  being  brought  up  before  a 

1  Pearse  v.  Pearse,  1  De  Gex  &  Smale,  28,  29. 


THE  LA  W  REPORTERS.  45 

coroner,  to  gi^•e  evidence  on  an  inquest,  the  narrative 
thus  proceeds  :    " '  Name  Jo.     Nothing  else  that  he 

knows  on Knows  a  broom  's  a  broom,  and 

knows  it 's  wicked  to  tell  a  lie.  Don't  recollect  who 
told  him  about  the  broom,  or  about  the  lie,  but  knows 
both.  Can't  exactly  say  what  '11  be  done  to  him  arter 
he 's  dead  if  he  tells  a  lie  to  the  gentlemen,  but 
believes  it  '11  be  something  wery  bad  to  punish  him, 
and  sarve  him  right,  —  and  so,  he  '11  tell  the  truth.' 
'This  won't  do,  gentlemen,'  says  the  coroner,  with 
a  melancholy  shake  of  the  head.  '  Don't  you  think 
you  can  receive  his  evidence,  sir  ? '  asks  an  attentive 
juryman.  'Out  of  the  question,'  says  the  coroner; 
'  you  have  heard  the  boy ;  can't  exactly  say  won't  do, 
you  know.  We  can't  take  that  in  a  court  of  justice, 
gentlemen.  It 's  terrible  depravity.  Put  the  boy 
aside.'  Boy  put  aside  ;  to  the  great  edification  of  the 
audience,  especially  of  little  Swills,  the  comic  vocal- 
ist." 


IN  case  for  words  which  imported  the  committing 
of  adultery  by  the  plaintiff  with  Jane  at  Stile, 
the  defendant  in  mitigation  of  damages  may  give  in 
evidence,  that  the  plaintiff  committed  adultery  with 
Jane  at  Stile,  but  not  with  any  other  woman.  Per 
Holt  Chief  Justice,  at  Brentwood,  Summer  Assizes, 
13  Win.  III. ;  ruled  accordingly.^ 

1  Smithies  v.  Dr.  Harrison,  1  Ld.  Raym.  727. 


46  CURIOSITIES  OF 

FEOM  the  language  used  by  Lord  Eaymond  in 
his  report  of  the  case  of  Brewster  v.  Kitchin/ 
it  would  seem  that  he  had  no  great  respect  for  the 
justices  who  sat  with  Lord  Holt.  After  mentioning 
a  decisive  objection  to  an  action  started  by  the  Chief 
Justice,  he  says  :  "  But  the  other  three  judges  seemed 
to  be  in  a  surprise,  and  not  in  truth  to  comprehend 
this  objection ;  and  therefore  they  persisted  in  their 
former  opinion,  talking  of  agreements,  intent  of  the 
party,  binding  of  the  land,  and  I  know  not  what. 
They  gave  judgment  for  the  plaintiff,  against  the 
opinion  of  Holt  Chief  Justice." 


IN  the  "  Statutes  of  the  Streets,"  printed  in  1598, 
it  is  ordered  that  "no  man  ....  shall  whistle 
after  the  houre  of  nyne  of  the  clock  in  the  night," 
or  "  keep  any  rule  whereby  any  such  suddaine  outcry 
be  made  in  the  still  of  the  night,  as  making  an  affray 
or  beating  his  wife  or  servant,"  etc. 


FORTESCUE  affirms  that  "  a  jury  is  not,  nor  can 
be,  bound  by  any  opinion  of  the  House  of  Com- 
mons, nor  by  any  court  of  law  in  the  world,  but  that 
of  their  own  consciences."  ^ 

1  1  Ld.  Raym.  322. 

2  De  Laud.  Leg.  Ang.  p.  107.    Cited  in  Broom  Constitutional  Law, 
p.  868. 


THE  LAW  REPORTERS.  47 

HOLT  C.  J.  "  If  a  man  solicits  a  woman  and 
goes  gently  to  work  with  her  at  first,  and  when 
he  finds  that  will  not  do  he  proceeds  to  force,  it  is 
all  one  continued  act,  beginning  with  the  insinuation 
and  ending  with  tlie  force.  And  this  being  an  at- 
tempt and  solicitation  to  incontinency,  coupled  with 
force  and  violence,  it  does  by  reason  of  the  force, 
which  is  temporal,  become  a  temporal  crime  in  the 
whole.  An  indictment  will  not  lie  for  a  plain  adul- 
tery, but  libel  in  the  spiritual  will."  ^ 


FEOM  the  journal  of  a  Gloucestershire  magistrate, 
A.  D.  1715  to  1756,  it  appears  that  Frances 
Williams,  a  damsel  who,  loving  well  rather  than 
wisely,  is  necessitated,  on  the  13th  April  1715,  to 
appear  before  the  magistrate,  in  accordance  with  the 
law  as  it  then  stood, "  to  be  examined  about  her  great 
belly."  A  week  subsequently  she  is  again  brought 
before  him  "  touching  tlie  aforesaid  felony y 


IN  a  case  in  the  Court  of  King's  Bench,  in  conse- 
quence of  the  affirmative  of  the  issue  being  on 
the  defendant,  and  his  beginning,  the  jury  found  a 
verdict  for  the  defendant  when  they  intended  to  find 
for  the  plaintiff.  Tlie  court  refused  to  grant  a  new 
trial.2 

1  Rigault  V.  Gallizard,  Holt.  51. 

2  Bridgewood  v.  Wynn,  1  Harrison  &  Wollaston,  574.     Bridgewater  v. 
Plymouth,  97  JIass.  382,  391. 


48  CURIOSITIES   OF 

LOED  CAMPBELL,  in  his  Life  of  Lord  Lynd- 
hiirst,  p.  141,  gives  the  following  account  of  the 
great  case  of  Tlie  Queen,  plaintiff  in  error,  v.  Millis.^ 
"The  law  lords  were  definitively  divided  upon  the 
most  important  question  which  ever  came  before  the 
House  of  Lords  as  the  Supreme  Court  of  Appeal. 
Unfortunately  such  a  question  was  decided  on  the 
technical  maxim  by  which  the  House  of  Lords  alone, 
of  all  the  tribunals  I  ever  read  of,  is  governed,  — 
Semper  pr?esumitur  contra  negantem,  —  making  the 
result  often  depend  upon  the  language  in  which  the 
questioned  is  framed.^  In  Ireland,  a  man  who  was 
a  member  of  the  Established  Church  was  married  to  a 
woman  who  was  a  Presbyterian  by  a  regularly  offici- 
ating Presbyterian  clergyman,  both  parties  intending 
to  contract  a  valid  marriage,  and  believing  that  they 
had  done  so.  They  lived  together  some  years  as  man 
and  wife,  and  had  several  children,  who  were  acknowl- 
edged as  legitimate.  The  husband  then  married 
another  wife,  the  former  wife  being  still  alive,  and 
was  indicted  for  bigamy.  His  defence  was  that  the 
first  marriage  was  a  nullity,  and  therefore  that  he 
committed  no  crime  when  he  married  the  second  wife. 
Then  arose  the  fearful  question,  whether  by  the 
common  law  of  England  there  might  be  a  valid  mar- 
riage by  the  consent  of  the  parties  without  the  pres- 
ence of  a  priest  episcopally  ordained.    For  half  a  cen- 

1  10  Clark  &  Flnnelly,  534  (1844). 

2  But  see  Durant  v.  Essex  Company,  7  Wallace,  p.  113,  and  Appendix, 
p.  755. 


THE  LAW  REPORTERS.  49 

tiiry,  ever  since  the  decision  of  Lord  Stowell,  in  the 
famous  case  of  Dahymple  v.  Dalrymple/  it  had  been 
considered  established  doctrine  that  the  presence  of 
an  episcopally  ordained  priest  was  unnecessary.  This 
doctrine  had  been  expressly  approved  of  by  Lord  Ken- 
yon,  Lord  EUenborough,  Lord  Teuterden,  and  all  our 
most  eminent  Judges,  and  upon  the  strength  of  it  there 
had  been  repeated  convictions  for  bigamy.  But  in 
an  obscure  book,  lately  published,  professing  to  state 
'  Tlie  Law  of  Husband  and  Wife,'  ^  the  doctrine  was 
controverted ;  and  upon  this  doctrine  proceeded  this 
prisoner's  defence.  The  Irish  Judges  were  equally 
divided ;  and,  strange  to  say,  the  English  Judges,  be- 
ing consulted  by  the  House  of  Lords,  declared  them- 
selves unanimously  of  opinion  that  the  first  marriage 
was  null,  although  they  admitted  that  this  was  con- 
trary to  the  Canon  Law  which  prevailed  in  every 
other  country  of  Europe  before  the  Council  of  Trent. 
They  relied  chiefly  on  a  supposed  Anglo-Saxon  law, 
that,  to  make  nuptials  prosperous,  '  there  must  be 
present  a  mass  priest.'  Yet  they  admitted  that  a 
marriage  celebrated  by  one  in  deacon's  orders  always 
was  and  is  valid,  notwithstanding  that  a  deacon  is 
not  a  mass  priest.  Six  law  lords  had  been  present  at 
the  argument,  —  the  Lord  Chancellor,  Lord  Lynd- 
hurst.  Lord  Abinger,  Lord  Cottenham,  Lord  Brougham, 
Lord  Denman,  and  Lord  Campbell.     Of  these,  the 

1  2  Haggard  Cons.  Rep.  54  (1811). 

2  Roper  on  the  Law  of  Husband  and  Wife,  ed.  Jacob,  1826. 


50  CURIOSITIES   OF 

first  three  voted  for  reversing  the  conviction,  and  the 
last  three  for  aftirmino-  it. 

"If  the  motion  had  been  that  the  judgment  be 
affirmed,  we,  tlie  contents,  should  have  succeeded  in 
establishing  the  old  common  law  as  laid  down  by 
Lord  Stowell,  the  presumption  being  against  the  nega- 
tive ;  but  the  Chancellor,  according  to  a  standing- 
order  of  the  House,  put  the  question  that  '  the  judg- 
ment be  reversed,'  and  we  were  obliged  to  say  'Not 
content,'  the  presumption  was  against  us,  and  a  judg- 
ment passed  by  which  hundreds  of  marriages,  the 
validity  of  which  had  not  been  doubted,  were  nulli- 
fied, and  thousands  of  children  were  bastardized." 


LOED  COKE  says  that  if  a  gentlewoman  be 
termed  "  spinster,"  she  may  abate  the  writ. 
An  indictment  against  Alicia  S.  of  D.  in  the  county 
of  S.,  wife  of  F.  S.  sjnoistcr,  etc.  is  not  good ;  for  spin- 
ster being  an  indifferent  addition  for  man  or  woman, 
should  refer  to  F.  S.,  which  is  the  next  antecedent, 
and  so  the  woman  has  no  addition. ^ 


IN  a  recent  case  Chief  Justice  Erie  observed:  "  It  is 
certainly  an  odd  sort  of  an  estate,  —  a  fee-simple 
in  a  profit  a  prendre."  ^ 

1  Dyer,  46  b.    Noy  Maxims,  4. 

2  Bailey  v.  Stephens,  12  C.  B.  N.  S.  p.  103. 


THE  LAW  REPORTERS.  51 

THE  following  is  Lord  Langdale's  graphic  descrip- 
tion of  Lord  Cardigan's  celebrated  trial :  "  The 
House  was  rather  thin  of  Peers.  The  case  went  off 
in  a  very  absurd  way.  The  indictment  was  for  firing 
at  Harvey  Garnett  Phi'pps  Tuckett,  with  intent  to 
kill,  etc. ;  but  when  they  came  to  prove  this,  there 
was  no  witness  produced  who  knew  Lieutenant  Tuck- 
ett by  any  other  name  than  '  Harvey  Tuckett ' ; 
and  the  consequence  was  that  Sir  William  Follett 
immediately  objected  that  there  was  no  evidence 
to  sustain  the  indictment. 

"  Strangers  were  therefore  ordered  to  withdraw,  and 
Lord  Denman  stated  that  he  considered  the  objection 
valid,  and  in  this  he  was  supported  by  Lords  Abinger, 
Brougham,  Wynford,  etc. ;  and  then,  after  a  little 
debate  whether  the  House  should  at  once  proceed  to 
judgment,  it  was  decided  that  they  would ;  and  the 
question  of  '  Guilty,  or  not  Guilty  ? '  being  put.  Lord 
Cardigan  was  immediately  acquitted."  ^ 


THERE  are  very  many  cases  of  murder  more 
venial  than  many  cases  of  manslaughter.  A. 
slaps  P).  in  the  face,  B.  stabs  him ;  tliis  is  manslaughter. 
A.  shoots  at  a  fowl,  intending  to  steal  it ;  one  grain 
of  shot  hits  B.,  who  dies  of  lockjaw  a  month  after ; 
this  is  murder.  The  fowl,  instead  of  a  hen,  is  a  wild 
partridge ;  it  is  manslaughter.     A.  B.  C.  D.  and  E.  are 

1  See  Dearsly  C.  C  474,  481. 


52  CURIOSITIES   OF 

stealing  apples ;  F.,  the  owner  of  the  tree,  collars  A., 
who  resists.  B.  C.  D.  and  E.  throw  stones  at  liim, 
and  the  stone  thrown  by  D.  kills  him ;  this  is  mur- 
der in  all  five.  A.  has  reason  to  think  that  B.  has 
seduced  his  wife;  runs  home,  finds  some  evidence 
(though  not  conclusive  evidence)  of  the  fact,  and  stabs 
B. ;  this  (per  Watson  B.,  Eegina  v.  Davies,  Liverpool 
Summer  Assizes  1857)  is  "  manslaughter  of  the  lowest 
degree." 

^(\ 

"TT7"HEN  the  proceedings  have  been  entered  upon 
V  V  record,  the  common-law  power  of  amend- 
ment ceases ;  for  the  Judges  at  common  law  were 
prohibited  from  allowing  alterations  to  be  made  in 
any  record,  and  indeed  several  of  them  were,  during 
the  reign  of  Edward  I.,  severely  punished  for  so  doing, 
among  whom  the  Lord  Chief  Justice  Hengham  was 
fined,  according  to  some  seven  thousand,  to  others  eight 
liundred  marks,  which  sum,  as  we  are  told  by  Justice 
Southcote,^  was  expended  in  building  a  clock-house 
at  Westminster,  with  a  clock  to  be  heard  in  the  Hall, 
—  a  circumstance  whieh,  as  is  observed  by  INIr.  Jus- 
tice Coleridge  in  his  admirable  edition  of  Blackstone's 
Commentaries,  explains  a  dictum  of  Lord  Holt ;  ^  who, 
refusing  to  amend  a  record,  said,  "he  considered 
there  wanted  a  clock-house  over  against  the  Hall- 
gate." 

1  3  Inst.  72.     4  Inst.  255.     1  Hale  P.  C.  646. 

2  Anon.  6  Mod.  130. 


THE  LAW  REPORTERS  53 

IN  North's  Life  of  Lord  Keeper  Guilford,^  it  is  said  : 
"  The  court,  answering  the  title  of  Common  Pleas, 
was  placed  next  the  hall  door,  that  suitors  and  their 
train  might  readily  pass  in  and  out.  But  the  air  of 
the  great  door,  when  the  wind  is  in  the  north,  is  very 
cold,  and,  if  it  might  have  been  done,  the  court  had 
been  moved  a  little  into  a  warmer  place.  It  was 
once  proposed  to  let  it  in  through  the  wall  (to  be 
carried  upon  arches)  into  a  back  room,  which  they 
call  the  Treasury.  But  the  Lord  Chief  Justice  Bridg- 
man  w^ould  not  agree  to  it,  as  against  Magna  Cliarta, 
which  says  that  the  Common  Pleas  shall  be  held  in 
certo  loco,  or  in  a  certain  place,  Mdth  which  the  dis- 
tance of  an  inch  from  that  place  is  inconsistent,  and 
all  the  pleas  would  be  coram  non  judice.  Although, 
at  the  same  time,  others  thought  that  the  locus,  there, 
means  the  villa  only ;  so  tha,t  the  returns  being  apud 
Westmonasterium,  the  court  might  sit  on  the  other 
side  of  the  Abbey,  and  no  solecism  of  jurisdiction 
happen.  But  yet  that  formal  reason  hindered  a  use- 
ful reform;  which  makes  me  think  of  Erasmus,  who, 
having  read  somewhat  of  English  law,  said  that  tlie 
lawyers  were  doctissimum  genus  indoctissimorum 
hominum." 

V/" 

IN  1539  Parliament  passed  "An  Act  for  abolishing 
Diversity  of  Opinions  in  certain  Articles  concern- 
ing Christian  Eeligion."  ^ 

1  Vol.  I.  p.  199.     Manning  Serviens  ad  Legem,  179, 180. 

2  31  Hen.  VIII.  ch.  14. 


54  CURIOSITIES   OF 

SIR  JOHN  STEANGE,  Solicitor-General,  better 
known  in  the  profession  by  his  Eeports,  thus 
records  under  his  own  hand  his  early  success  and 
good  fortune  :  "  Memorandum.  Having  received  a 
considerable  addition  to  my  fortune,  and  some  de- 
gree of  ease  and  retirement  being  judged  proper 
for  my  health,  I  this  term  (M.  T.  16  Geo.  II.)  re- 
signed my  offices  of  Solicitor-General,  King's  Coun- 
sel, and  Eecorder  of  the  city  of  London,  and  left  off 
my  practice  at  tlie  House  of  Lords,  Council  Table, 
Delegates  [now  the  Judicial  Committee  of  the  Privy 
Council],  and  all  the  courts  in  Westminster  Hall, 
except  the  King's  Bench,  and  there  also  at  the  after- 
noon sittings.  His  Majesty  (Geo.  II.),  when  at  a 
private  audience  I  took  leave  of  him,  expressed  him- 
self with  the  greatest  goodness  towards  me,  and 
honored  me  with  his  patent,  to  take  place  for  life 
next  to  his  Attorney-General.  —  Anno  aetatis  mese 
47."  1 

THE  king,  for  prevention  of  offences,  may  by 
proclamation  admonish  his  subjects  that  they 
keep  the  laws  and  do  not  offend  against  them ;  and 
the  disobeying  a  proclamation,  when  legal,  has  been 
said  to  constitute  a  substantive  offence,  for  wliich  the 
offending  party  may  be  punished.  But  said  Sir 
Edward  Coke,  "  I  never  heard  an  indictment  to  con- 
clude contra  regiam  proclamationem.^ 

1  2  strange,  1176.  2  12  Rep.  75. 


THE  LAW  REPORTERS.  55 

IN  the  reign  of  Elizabeth,  actions  for  slanderous 
words  were  of  frequent  occurrence;  and  many 
refined  distinctions  were  resorted  to  by  the  Judges. 
To  call  a  man  a  cuckold  was  not  an  ecclesiastical 
slander  ;  but  wittol  was,  for  it  imports  his  knowledge 
of  and  consent  to  his  wife's  adultery.^  Shakespeare 
noticed  this  distinction.  In  "  The  Merry  Wives  of 
Windsor,"  Act  II.  Scene  2,  Ford  exclaims,  "  Terms 
names  !  —  Amaimon  sounds  well ;  Lucifer,  well ;  Bar- 
bason,  well ;  yet  they  are  devil's  additions,  the  names 
of  fiends  :  but  cuckold  !  ivittol-oxxokoldi !  the  devil  him- 
self hath  not  such  a  name." 


IN  1824  John  Eichardson,  Esq.,  published  an 
edition  of  Branch's  Maxims  with  a  translation. 
The  following  are  specimens  of  this  scholarly  per- 
formance :  Errores  scribentis  nocere  non  debent,  that 
is,  Clerical  errors  ought  not  to  vitiate,  is  translated, 
"  The  mistahes  of  a  man  ivriting  ovglit  not  to  harm." 
Asain,  the  well-known  maxim,  Omnis  nova  consti- 
tutio  futuris  temporibus  formam  imponere  debet,  non 
prceteritis,  which  Mr.  Broom  accurately  translates, 
"  A  legislative  enactment  ought  to  be  prospective  in 
its  operation,  not  restrospective,"  is  thus  rendered, 
"  UverT/  new  institution  slwuld  give  a  form  to  future 
times,  not  to  past!' 

1  Holt  C.  J.  in  Smith  v.  Wood,  2  Salk.  692. 


56  CURIOSITIES  OF 

IT  has  sometimes  been  supposed  that  the  bench 
offers  but  little  opportunities  for  eloquent  fancy 
or  polite  erudition ;  how  erroneous  this  opinion  is, 
our  readers  will  see  from  the  following  exordium  of 
an  opinion  delivered  by  Chief  Justice  Crozier,  in  the 
case  of  Searle  v.  Adams :  ^  — 

"  In  this  case,  the  irrepressible  Statute  of  Limita- 
tions is  again  presented  for  consideration.  For  some 
years  past,  upon  the  disposition  of  each  succeeding 
case  involving  a  construction  of  this  statute,  it  was 
considered,  by  bench  and  bar,  that  fiction  itself  could 
scarcely  conceive  of  a  new  question  to  arise  there- 
under :  but,  as  term  after  term  rolls  around,  there 
are  presented  new  questions,  comparing  favorably  in 
point  of  numbers  with  Falstaff's  men  in  buckram; 
thus  adding  to  the  legions  that  have  gone  before  a 
new  demonstration  of  the  propriety  and  verity  of 
the  adage,  that  '  truth  is  stranger  than  fiction.'  AVith 
the  heat  of  ninety-eight  degrees  of  Fahrenheit  in  the 
shade,  and  the  newspapers  teeming  with  reports  of 
the  ravages  of  our  great  common  enemy,  who,  the  more 
effectually  to  accomplish  his  double  purpose  of  cap- 
turing the  imprudent  and  frightening  the  timid,  has 
assumed  the  form  of  the  Asiatic  monster,  it  might  be 
supposed  by  the  unthinking  that  the  consideration 
of  such  questions  would  be  entered  upon  rather 
reluctantly.  But  we  beg  to  disabuse  the  public  mind 
of  any  such  heresy.     Cases  might  be  imagined  where 

1  3  Banks,  515,  518. 


THE  LAW  REPORTERS.  57 

'  smashes'  would  not  stimulate,  nor  'cobblers '  quicken, 
nor  'juleps  '  invigorate  ;  but  a  new  question  under  our 
Statute  of  Limitations,  in  coolness  and  restoring  power, 
so  far  exceeds  any  and  all  of  these,  that,  when  one  is 
presented,  the  '  fine  ould  Irish  gintleman's '  resurrec- 
tion under  the  circumstances  detailed  in  the  song 
becomes  as  palpable  a  reality  as  the  '  Topeka  Con- 
stitution,' or  '  the  temtorial  capital  at  Mineola.'  The 
powers  of  a  galvanic  battery  upon  the  vital  energies 
are  wholly  incomparable  to  it.  So  that  the  consid- 
eration of  this  case  upon  this  day  of  wilted  collars 
and  oily  butter  should  not  entitle  the  court  to  many 
eulogies  for  extraordinary  energy  in  the  fulfilment  of 

its  duties Counsel  was  understood  to  intimate 

that  some  mischievously  disposed  persons,  with  a 
diabolical  intent  not  clearly  revealed,  while  organized 
as  the  legislature  of  the  State,  had  made  a  violent 
and  unwarrantable  onslaught  upon  the  Constitution, — 
that  Constitution  which  this  court,  as  a  tripedal  pier, 
is  exerting  its  utmost  endeavors  to  support,  —  that 
Constitution  which,  not  only  from  patriotic  and  moral, 
but  from  alimentary  considerations  as  well,  we  are 
bound  to  maintain  and  defend.  Being  in  a  somewhat 
'  melting  mood '  to-day,  we  would  be  pleased  to  gratify 
counsel  by  adopting  his  fears,"  etc. 

The  learned  justice  then  goes  on  to  decide  the  case, 
and  concludes  that  "  it  is  as  transparent  as  the  soup 
of  which  Oliver  Twist  implored  an  additional  sup- 
ply," that  the  case  does  not  come  within  the  statute. 

3* 


58  CURIOSITIES   OF 

If  the  reader  desires  a  further  specnnen  of  Judge 
Crozier's  eloquence,  we  refer  him  to  his  remarks  in 
Craft  V.  The  State,^  in  defending  the  somewhat  obvious 
proposition,  that  a  jury  is  not  bound,  as  matter  of  law, 
to  disbelieve  the  evidence  of  a  prostitute ;  or,  to  use 
his  own  words,  that  it  ought  not  to  be  said  that  a  wo- 
man "  pours  out  from  her  heart  at  Venus'^shrine  with 
her  virtue  every  other  good  "quality  with  which  in  our 
thoughts  we  endow  her  sex,"  and  this  "  whether  she 
habitually  flaunts  her  frailty  in  the  face  of  the  world, 
or  attempts  to  hide  it  in  retiracy,  or  garnish  it  with 
garlands  of  good  works."  ^ 


THE  famous  judgment  of  Sancho  Panza  acquitting 
the  herdsman  charged  with  rape,  was  founded 
on  the  ascertained  fact  that  the  prosecutrix  success- 
fully resisted  the  attempt  to  take  her  purse,  which 
the  accused  made  by  order  of  the  court.  "  Sister  of 
mine,"  said  honest  Sancho,  to  the  forceful  but  not 
forced  damsel,  "  had  you  shown  the  same,  or  but  half 
as  much  courage  and  resolution  in  defending  your 
chastity,  as  you  have  shown  in  defending  your  money, 
the  strength  of  Hercules  could  not  have  violated 
you."  2  It  is  matter  of  curiosity  to  observe  that  this 
is  not  a  fictitious  case,  but  is  to  be  found  in  Muyart 

1  3  Banks,  450,  480. 

2  For  the  above  passages  from  the  Kansas  Reports,  with  the- com- 
ments, I  am  indebted  to  The  American  Law  Review,  Vol.  I.  p.  748. 

3  Don  Quixote.  Part  II.  bk.  3,  ch.  13. 


THE  LAW  REPORTERS.  59 

de  Voiiglans,  a  learned  writer  on  the  Criminal  Law 
of  France,  p.  498  (4to.  Paris,  1757).  It  is  tlie  exact 
case  in  which  Sancho  gave  judgment,  and  his  judg- 
ment accorded  with  that  of  the  French  judge. 


IN  "  The  Practice  of  the  High  Court  of  Chancery 
Unfolded,"  ed.  1672,  we  find  the  following  among 
"  Suits  denied  help  in  the  Chancery,  pp.  49,  50  "  :  — 

Perpetuities  of  all  kinds  by  assurances,  statutes 
acknowledged,  etc.  for  they  fight  against  God. 

A  plaintiff  making  his  title  by  an  entail,  the  Lord 
Cliancellour  Egerton  dismissed  it,  saying  of  the  statute 
De  donis  conditionalibus,  calling  it  the  ambitious 
statute,  let  it  help  him  at  the  Jaw  as  it  may. 

Casual  morts  upon  the  return  from  Constantinople, 
etc. 

Play-houses  and  all  houses  of  iniquity,  the  court 
being  a  court  of  equity. 

Estates  derived  under  concealed  titles,  the  Lord 
Egerton  saying  that  as  the  titles  began  by  the  rigour 
of  the  law,  let  them  so  mamtain  them  by  the  law  as 
they  come. 

Country  awards  by  the  voluntary  submission  of  the 
parties  without  any  order  or  reference  of  court. 

A  man  steals  his  wife  against  her  friends'  assent, 
and  sues  for  a  portion  here :  Lord  Egerton,  He  that 
steals  flesh  let  him  provide  bread  how  he  can. 


60  CURIOSITIES  OF 

rriHE  following  is  a  brief  extract  from  a  law  paper, 
-L  for  the  full  understanding  of  wliich  it  has  to  be 
kept  in  view  that  the  pleader,  being  an  officer  of  the 
law,  who  has  been  prevented  from  executing  his 
warrant  by  threats,  is  required,  as  matter  of  form,  to 
swear  that  he  was  really  afraid  that  the  threats  would 
be  carried  into  execution :  — 

"  Farther  depones,  that  the  said  A.  B.  said  that  if 
deponent  did  not  immediately  take  himself  off  he 
would  pitch  him  (the  deponent)  down  stairs,  —  which 
the  deponent  verily  believes  he  would  have  done. 

"  Farther  depones,  that,  time  and  place  aforesaid, 
the  said  A.  B.  said  to  deponent, '  If  you  come  another 
step  nearer,  I  11  kick  you  to  hell,'  —  which  the  depo- 
nent verily  believes  he  would  have  done." 

THE  following  is  a  translation  of  the  first  bill 
ever  filed  in  Chancery  :  — 
"  To  the  very  Eeverend  Father  in  God  the  Arch- 
bishop of  York,  Chancellor  of  England,  sheweth 
Thomas  Duke  of  Gloucester ;  That,  whereas  by  an 
inquest  taken  before  the  Escheater  of  our  Lord  the 
King  in  the  county  of  Salop,  by  writ  of  diem  clausit 
extremum,  after  the  death  of  Thomas  late  Earl  of 
Stafford,  it  was  found  by  the  same  inquest  that  tlie 
said  late  Earl  died  seised  in  demesne  as  of  fee,  among 
other  lands  and  tenements  in  the  said  county,  of  a 
messuage  and  certain  other  lands  and  tenements  with 


THE   LAW  REPORTERS.  61 

the  appurtenances,  in  the  town  of  Bridgenorth  in  the 
said  county,  the  custody  of  which  lands  and  tene- 
ments, among  other  lands  and  tenements,  which  were 
of  the  said  late  Earl,  was  committed  to  the  said 
Duke,  to  have  under  a  certain  form,  as  in  the  letters 
patent  of  our  said  Lord  the  King,  thereupon  made  to 
the  said  Duke,  is  more  fidly  contained.  And  so  it  is 
that  Thomas  Othale,  with  divers  other  persons,  have 
entered  into  the  said  lands  and  tenements  in  the  said 
town,  in  the  possession  of  our  said  Lord  the  King. 
Wherefore  may  it  please  your  sage  discretion  to  con- 
sider the  matter  aforesaid,  and  to  grant  a  writ  directed 
to  the  said  Thomas  Othale,  for  to  be  before  you  in 
Chancery  of  our  said  Lord  the  King  at  the  Octaves 
of  the  Trinity  next  coming,  under  the  penalty  of 
£100,  to  answer  the  matters  aforesaid,  done  in  con- 
tempt of  our  said  Lord  the  King."  ^ 


IT  was  decided  as  early  as  the  reign  of  Henry  V. 
that  a  contract  imposing  a  general  restraint  on 
trade  is  void.  Hull  J.  flew  into  a  passion  at  the  sight 
of  a  bond  imposing  such  a  condition,  and  exclaimed : 
"  A  ma  intent  vous  purres  aver  demurre  sur  luy  que 
I'obligation  est  voide  eo  que  le  condition  est  encoun- 
ter common  ley,  et  per  Dieu,  si  le  plaintiff  fuit  icy,  it 
irra  al  prison  tanque  il  ust  fait  fine  au  Roy.'"^ 

1  A  Calendar  of  Proceedings  in  Chancery,  printed  in  1827. 

2  Year-Book,  2  Hen.  V.  fol.  6,  pi.  26. 


62  CURIOSITIES   OF 

IN  Nash  V.  Battersby,!  the  plaintiff  declared  with 
the  addition  of  gentleman.  The  defendant  plead- 
ed in  abatement  that  the  plaintiff  was  no  gentleman. 
The  plaintiff  demurred,  and  it  was  held  ill ;  for,  said 
the  court,  it  amounts  to  a  confession  that  the  plaintiff 
is  no  gentleman,  and  then  not  the  person  named  in 
the  count.  He  should  have  replied  that  he  is  a 
gentleman. 

w 
^(\ 

ACCOEDING  to  Lord  Campbell,  in  the  tenth 
year  of  King  Henry  VII.,  that  very  distin- 
guished judge.  Lord  Hussey,  who  was  Chief  Justice 
of  England  during  four  reigns,  in  a  considered  judg- 
ment delivered  the  opinion  of  the  whole  Court  of 
King's  Bench  as  to  the  construction  to  be  put  upon 
the  words,  "  As  free  as  tongue  can  speak  or  heart  can 
think."  2 

WHEN  the  judgment  was  reversed  in  the  cele- 
brated case  of  O'Connellv.  The  Queen,  accord- 
ing to  the  oj)inion  of  Lord  Dennian,  Lord  Cotten- 
ham,  and  Lord  Campbell,  Lord  Brougham,  as  reported 
by  the  authorized  reporters  of  the  House  of  Lords,^ 
spoke  of  it  as  "  a  decision  which  will  go  forth  without 
authority,  and  come  back  without  respect."  ^ 

1  2  Ld.  Raym.  986.    6  Mod.  80. 

2  Year-Book,  10  Hen.  VII.  fol.  13,  pi.  6. 
8  Clark  &  Finnelly,  Vol.  XI.  p.  423. 

4  "  He  was  actually  in  a  furioixs  rage,"  writes  Lord  Campbell,  Life 
of  Lord  Brougham,  p.  531. 


THE  LAW  REPORTERS.  63 

IN  Saunders's  report  of  the  case  of  Veale  v.  "Warner,^ 
after  a  statement  of  his  argument  for  the  defend- 
ant, he  proceeds :  "  And  of  such  opinion  was  the 
whole  court  clearly.  But  they  would  not  give  judg- 
ment for  the  defendant,  because  they  conceived  it 
was  a  trick  in  pleading ;  but  they  gave  the  plaintiff 
leave  to  discontinue  on  payment  of  costs.  And 
Kelynge  Chief  Justice  reprehended  Saunders  for 
pleading  so  subtly  on  purpose  to  trick  the  plaintiff 
by  the  omission  of  the  other  part  of  the  award.  But 
it  was  a  case  of  the  greatest  hardship  on  the  defend- 
ant ;  for  the  bond  of  submission  was  only  in  the 
penalty  of  £2000,  and  the  arbitrators  had  awarded 
him  to  pay  £3100,  being  £1100  more  than  the  real 
penalty  of  the  bond ;  when,  in  truth,  there  was  nothing 
at  all  due  to  the  plaintiff,  but  he  was  indebted  to  the 
defendant." 


IT  is  one  of  the  principles  of  eternal  justice,  that 
no  one  is  to  be  punished,  or  deprived  of  his 
property  in  any  judicial  proceeding,  unless  he  has  had 
an  opportunity  of  being  heard.  Justice  Foster  refers 
to  a  very  old  precedent  in  support  of  this  doctrine.^ 
"  I  have  heard  it  observed  by  a  very  learned  man," 
says  he,  "  that  even  God  himself  did  not  pass  sentence 
upon  Adam  before  he  was  called  upon  to  make 
his  defence.     '  Adam,'  says  God,  '  where  art  thou  ? ' 

1  1  Saund.  327,  327  a,  6th  ed. 

2  Foster,  202.     1  Strange,  557.    Andrews,  176.     2  Ld.  Raym.  1334. 


64  CURIOSITIES   OF 

Hast  thou  not  eaten  of  the  tree  whereof  I  com- 
manded thee  that  thou  shouldst  not  eat  ? '  And  the 
same  question  was  put  to  Eve  also."  In  a  recent 
case  this  passage  was  cited  in  his  judgment  by  Mr. 
Justice  Maule,^ 


IN"  Birks  v.  Trippet  ^  is  the  following  passage : 
"  And  Twisden  Justice  interrupted  Saunders,  and 
said  to  him,  '  What  makes  you  labor  so  ?  The  court 
is  of  your  opinion,  and  the  matter  clear.' " 

The  reporter  appended  the  following  note  to  the 
case  of  Hayman  v.  Gerrard :  ^  "  The  jcourt  said  that 
the  replication  in  this  case  .was  well  concluded,  and 
as  it  ought  to  be  :  quod  mirum  videtur ;  for  it  seems 
to. me  that  the  replication  was  bad  upon  that  account, 
but  well  enough  for  the  other  point."  The  reporter's 
wonder  is  now  confirmed.* 


THE  head  note  to  Blackman  v.  Bainton,^  is  quaint : 
"Twenty-five  witnesses  and  a  horse  on  one 
side,  against  ten  mtnesses  on  the  other.  Held,  not 
such  a  preponderance  of  '  inconvenience '  as  to  induce 
the  court  to  bring  back  the  venue  from  the  place 
where  the  cause  of  action  (if  any)  arose." 

1  Abley  v.  Dale,  10  C.  B.  71,  72  (1850). 

2  1  Samid.  33  b,  6th  ed. 

3  1  Sauiid.  103,  6th  ed. 

4  Thorne  v.  Jenkins,  12  M  &  W.  614. 

5  15  C.  B.  N.  S.  432.  •   • 


THE  LAW  REPORTERS.  65 

THEEE  is  a  well-known  judgment  of  Mr.  Jus- 
tice Maule,  when  a  difference  of  opinion  existed 
among  the  members  of  the  bench.  "I  agree,"  said 
this  caustic  judge,  "with  the  conclusions  of  my 
brother  A.,  for  the  reasons  offered  by  my  brothers 
B.  and  C." 

"Q1 UEPLUSAGE,"  said  the  same  eminent  judge,  in 
O  that  happy  mode  in  which  he  combined  wit 
and  wisdom,  "  is  something  that  is  altogether  foreign 
and  inapplicable,  as  if  you  were  to  state  that  a  man 
had  a  Uiie  coat  on  and  did  a  certain  thi'ng ;  but  it  is 
not  surplusage  to  say  that  the  defendant  knocked  the 
plaintiff  down,  and  also  tore  his  clothes,  and  also  put 
his  eye  out."  ^ 

w 

/■IS 

THE  book  called  Latch's  Eeports  is  confessedly 
but  a  copy  made  by  Latch  from  some  other 
book.  "Header!"  appeals  the  editor  of  Latch,  in 
pompous  and  lying  solemnity,  "  the  testimonials  of 
many  sages  of  the  law,  the  judges,  and  his  contem- 
poraries, give  you  an  assurance,  above  all  I  can 
express,  that  the  original  of  this  impression  was  all 
written  by  that  worthy  person's  own  hand."  In  the 
preface  to  Palmer's  Eeports  it  is  said  somewhat 
snarlingiy,  that  the  cases  in  Latch  are  reported  "  cor- 
ruptly enough."  ^ 

1  Aldis  V.  Mason,  11  C.  B.  139. 

2  Wallace  The  Reporters,  190,  3d  ed. 


66  CURIOSITIES   OF 

IN  the  "  Assizes  de  Jerusalem  "  —  one  of  the  most 
curious  aud  important  relics  of  the  jurisprudence 
of  the  Middle  Ages,  a  compilation  made  towards  the 
close  of  the  eleventh  century —  we  have  a  full  account 
of  the  office,  duties,  and  proper  qualifications  of  a 
pleader.  As  a  translation  of  this  barbarous  dialect 
may  save  tlie  reader  some  trouble,  the  following  veiy 
literal  one  is  offered  :  ^  "  Every  person  about  to  plead 
in  the  Supreme  Court,  ought,  before  he  begins,  to 
pray  the  lord  to  appoint  him  counsel.  He  ought  to 
pray,  for  his  counsel,  the  best  pleader  in  the  court ; 
and  this,  wliether  he  is  himself  a  pleader  or  not; 
because,  in  the  latter  case,  he  will  need  counsel  to 
defend  his  right,  and  establish  his  claim  or  defence ; 
and  even  in  the  former,  he  will  do  well  to  have 
counsel ;  since  there  is  no  pleader  so  wise,  that  he 
may  not  be  often  advised,  on  his  pleading,  by  another 
pleader ;  as  two  pleaders  know  more  than  one,  etc. 
He  who  has  counsel,  and  wishes  to  make  claim  on 
some  man  or  woman  present  in  court,  ought  to  say 
by  his  counsel  to  the  lord,  so  that  the  other  party 
may  hear,  Sir,  such  an  one  makes,  before  you,  such 
a  claim,  and  hopes  to  obtain  justice,  in  that  behalf, 
from  you  and  the  court;  and  then  he  should  say 
what  he  claims,  and  in  the  shortest  way  possible,  etc. 
A  good  pleader  ought  to  have  good  sense,  a  sound 
understanding,  and  a  subtle  genius ;  he  should  be  free 
from  the  faults  of  indecision,  timidity,  false  shame, 

1  Stephen  on  Pleading,  Appendix,  p.  xiv.  9th  Am.  ed. 


THE  LAW  REPORTERS.  67 

haste,  and  nonchalance ;  while  he  pleads,  he  should 
keep  his  attention  from  wandering  to  any  other 
subject,  and  should  also  take  care  to  avoid  undue 
heat  and  asperity."  Some  of  these  admonitions  seem 
to  deserve  the  attention  of  the  nineteenth  no  less 
than  the  eleventh  century. 


THE  old  reporters  often  note  the  manner  of  the 
judges.  Godbolt  tells  us  that  the  "Lord  Chan- 
cellor, smiling,  said  "  ^  that  a  case  might  be  doubted. 
RoUe  questions  the  correctness  of  an  opinion  uttered 
by  Coke,  since  "  Haught  semble  a  disallower  ceo  car  il 
shake  son  capit  at  ceo."  ^  And  Saunders  reports  a  case 
where  a  majority  of  the  court  gave  judgment  for  the 
plaintiff,  but  "  Twisden  Justice  contratotis  viribus, 
and  that  the  action  did  not  lie."  ^  In  recording  the 
judgments  of  this  somewhat  passionate  judge,  the 
reporters  begin,  "  Twisden,  in  furore,  observed,"  etc.* 


"rriHEY  [corporations]  cannot  commit  trespass  nor 
J-    be  outlawed  nor  excommunicate,  for  they  have 
no  souls."  — 10  Eep.  32  b.^ 

1  Lord  Mountjoy's  Case,  Godbolt,  18. 

2  Hudson  V.  Barton,  1  RoUe  Eep.  189. 

3  Pomfret  v.  Ricroft,  1  Saund.  322. 
•*  See  Saunders,  passim. 

5  Recent  cases  have  decided  that  an  action  will  lie  at  the  suit  of  or 
against  a  coi-poration  for  a  libel.  Whitfield  v.  Southeastern  Railway 
Company,  27  L.  J.  Q.  B.  229.  Metropolitan  Saloon  Omnibus  Company, 
V.  Hawkins,  28  L.  J.  Exch.  201. 


68  CURIOSITIES  OF 

OF  a  recent  Act  of  Parliament,  it  was  remarked  by 
Mr.  Justice  Maiile,  "  that  it  was  incongruous 
and  impossible  of  operation,  and  its  absurdities  so 
great  that  the  framers  themselves  had  no  very  dis- 
tinct notion  of  its  meaning."  ^ 

In  a  very  recent  case,^  Blackburn  J.  obsers^ed  with 
respect  to  an  Act  passed  in  1746:  "The  statute, 
though  not  drawn  in  modern  times,  is  somewhat 
obscure." 

■'IN 

PLOWDEN"  states  this  case  •  If  a  woman  is  warden 
of  the  Fleet,  and  one  imprisoned  in  the  Fleet 
marries  her,  it  is  an  escape  in  the  woman  and  the 
law  adjudges  the  prisoner  to  be  at  large,  for  he  cannot 
be  lawfully  imprisoned  but  under  a  keeper,  and  he 
cannot  be  under  the  custody  of  his  wife,  for  which 
reason  the  law  must  necessarily  adjudge  him  to  be  at 
large.^ 

YELATEETON  thus  concludes  his  report  of  a 
case  in  wliich  he  was  of  counsel  with  the 
defendant:  "And  therefore  the  plaintiff,  seeing  the 
opinion  of  the  court  against  him,  prayed  that  he 
might  discontinue  the  suit.  Quod  fuit  concessum 
per  Fleming  Chief  Justice,  and  the  other  justices 
would  not  cross  him  in  it."^ 

1  Stratton  v.  Pettit,  16  C.  B.  p.  432. 

2  Regina  v.  Scott,  4  Best  &  Smith,  p.  374. 

3  Comm.  37. 

*  Doughty  V.  Fawn,  Yelv.  p.  227. 


THE  LAW  REPORTERS.  69 

THE  present  Lord  Chief  Justice  "of  the  Court  of 
Queen's  Bench  thus  discourses  of  the  suLtili- 
tas  leguni :  "  An  amusing  instance  of  this  subtilitas  is 
given  by  Gaius,^  in  the  case  of  a  man  who  brought 
aii  action  against  another,  on  a  law  of  the  Twelve 
Tables,  for  cutting  down  his  vines.  The  plaintiff 
proved  the  fact,  but  he  was  defeated,  or,  as  we  should 
say,  nonsuited,  because  the  law  in  giving  the  action 
had  spoken  only  of  cutting  down  trees,  and  it  was 
held  that  the  plaintiff  ought  to  have  followed  the 
words  of  the  law.  I  take  it  there  is  nothing  to  beat 
this  to  be  found  in  Meeson  and  Welsby.  No  wonder 
that  Gaius,^  speaking  of  the  old  legal  actions,  is  led 
to  say,  '  Sed  istse  omnes  legis  actiones  panlatim  in 
odium  venerunt.  Namque  ex  nimia  subtilitate  ve- 
terum  eo  res  perducta  est,  ut  qui  minimum  errassct 
litem  jperderet!  Of  this,  indeed,  the  volumes  of 
Meeson  and  Welsby  might  furnish  us  with  instances 
in  abundance." 

•l\ 

IN"  an  old  case  ^  Hale  C.  J.  said  that  "  if  such  an 
action  should  be  allowed,"  —  that  is,  an  action 
against  a  custom-house  officer  for  seizing  goods,  wliich 
were  afterwards  condemned  as  forfeited  by  judg- 
ment of  the  proper  court,  —  "  the  judgment  would  be 
blowed  off  by  a  side  wind."  ^ 

1  Inst.  IV.  12.  2  Inst.  IV.  30. 

3  Vanderberg  v.  Blake,  Hardres,  194. 

4  Quoted  by  Byles  J.  in  Basebe  v.  Matthews,  Law  Rep.  2  C.  P.  p.  687. 


70  CURIOSITIES   OF 

LOED  BACOI^J'  relates  ^  that  in  Chancery,  one 
time,  when  the  counsel  of  the  parties  set  forth 
the  boundaries  of  the  land  in  question  by  the  plot, 
and  the  counsel  of  one  part  said,  "  AVe  lie  on  this 
side,  my  lord,"  and  the  counsel  of  the  other  part 
said,  "We  lie  on  this  side,"  the  Lord  Chancellor 
Hatton  stood  up  and  said,  "  If  you  lie  on  both  sides, 
whom  will  you  have  me  to  believe." 


ROLLE  reports  a  case  ^  which  contains  a  discus- 
sion between  the  bar  and  the  bench,  which 
deserves  a  place  beside  Stradling  v.  Stiles,  reported 
by  Pope.  The  report  cannot  with  good  taste  be 
copied ;  but  it  is  worth  reading,  in  the  original,  by 
any  one  fond  of  that  literature  elegantly  veiled  in 
French  cataloo-ues  as  "  curieux." 


IIST  the  first  volume  of  Cushing's  Reports  ^  is  this 
marginal  note  :  "  The  jurisdiction  of  State  courts 
being  limited  by  State  lines,  it  is  difficult  to  see  how 
the  order  of  a  court,  served  upon  a  party  out  of  the 
State  in  which  it  is  made,  can  have  any  greater  effect 
than  knowledge  brought  home  to  the  party  in  any 
other  way." 

1  Apothegms,  pi.  74.    Works,  Vol.  VII.  p.  136,  ed.  Speckling. 

2  White  V.  Brough,  1  RoIIe  Rep.  286.     Wallace  The  Reporters,  183, 
3ded. 

3  Ewer  V.  Coffin,  1  Cush.  24. 


THE  LAW  REPORTERS.  71 

QIOIME  very  significant  remarks  of  Lord  Holt  are 
k3  found  in  the  case  of  Wright  v.  Sharp.^  It  was 
a  motion  to  have  exceptions  allowed  after  the  trial. 
Lord  Holt  said :  "  You  should  have  insisted  on  your 
exception  at  the  trial ;  you  waive  it  if  you  acquiesce, 
and  shall  not  resort  back  to  your  exception  after  a 
verdict  against  you,  when  perhaps,  if  you  had  stood 
upon  your  exception,  the  party  had  other  evidence, 
and  need  not  have  put  the  cause  upon  this  point." 


"  TTOAVSOE^^R  the  verdict  seem  to  stray,"  says 
-J — L  Lord  Hobart,  "  and  conclude  not  formally  or 
punctually  unto  the  issue,  so  as  you  cannot  find  the 
words  of  the  issue  in  the  verdict,  yet  if  a  verdict  may 
be  concluded  out  of  it  to  the  point  in  issue,  the  court 
shall  work  it  into  form,  and  make  it  serve."  ^ 


IN"  1674  Lord  Chief  Justice  North,  in  his  judgment 
in  a  celebrated  case,^  says  :  "  These  instances  shew 
that  an  action  upon  the  case  is  esteemed  a  catholicon" 
that  is,  according  to  Johnson's  Dictionary,  "  an  univer- 
sal medicine." 

1  1  Salk.  288.    Quoted  by  Shaw  C.  J.  in  Holbrook  v.  Jackson,  7  Gush, 
p.  154. 

2  Foster  v.  Jackson,  Hobart,  54.   Quoted  in  Commonwealth  v.  Stebbins, 
8  Gray,  p.  496. 

3  Barnardiston  v.  Soame,  6  Howell  State  Trials,  p.  1108. 


72  CURIOSITIES   OF 

SIE  THOMAS  CLAEKE,  Master  of  the  EoUs, 
observed  :  "  There  are  two  things  against  which 
a  judge  ought  to  guard,  — precipitancy  and  procrasti- 
nation. Sir  Nicholas  Bacon  was  made  to  say,  wliich 
I  hope  never  again  to  hear,  that  a  speedy  injustice  is 
as  good  as  justice  which  is  slow."  ^ 


"  "'^rOTHINGr  can  call  this  court  into  activity," 
-LM  judicially  observed  Lord  Camden,  "but  con- 
science, good  faith,  and  reasonable  diligence.  When 
these  are  wanting,  the  court  is  passive  and  does 
nothing."  ^ 

My 

IF  one  man  keeps  a  school  in  such  a  place,  another 
may  do  so  likewise  in  the  same  place,  though  he 
draw  away  the  scholars  from  the  other  school,  't  is 
true,  this  is  damnum,  but 't  is  absque  injuria ;  but  he 
must  not  shoot  guns  at  the  scholars  of  the  other 
school,  to  fright  them  from  coming  there  any  more.^ 


LOED  HALE  says  a  jury  should  be  told  "  where 
the   main   question    or   knot   of  the   business 
lies."  ^ 

1  Atherton  v.  Worth,  1  Dickens,  p.  377. 

2  Smith  V.  Clay,  3  Brown  C.  C.  p.  639  note. 
8  Holt  Chief  .Tustice,  3  Salk.  10. 

4  History  of  the  Common  Law,  256.    Quoted  in  the  judgment  in  Black- 
burn V.  Crawfords,  3  Wallace,  p.  194. 


THE  LAW  REPORTERS.  73 

"TT"7^HILE  Chief  Justice  Richardson  was  attend- 
V  V  ing  the  assizes  at  Salisbury,  a  prisoner,  whom 
he  had  condemned  to  death  for  some  felony,  threw 
a  brickbat  at  his  head ;  but,  stooping  at  the  time,  it 
only  knocked  off  his  hat.  When  his  friends  con- 
gratulated him  on  his  escape,  he  said,  "  You  see,  now, 
if  I  had  been  an  upright  judge,  I  had  been  slain." 
The  additional  punishment  upon  this  offender  is  thus 
curiously  recorded  by  Chief  Justice  Trevy  in  the 
margin  of  Dyer's  Eeports,  p.  188  b.  "  Richardson  C. 
J.  de  C.  B.  at  Assizes  at  Salisbury  in  Summer  1631, 
fuit  assault  per  Prisoner  condemne  j)ur  Felony;  — 
que  puis  son  condemnation  ject  un  Brickbat  a  le  dit 
Justice,  que  narrowly  mist.  Et  pur  ceo  immediate- 
ly fuit  Indictment  drawn  pur  Noy  envers  le  Prisoner, 
et  son  dexter  manus  ampute  et  fixe  al  Gibbet,  sur 
que  luy  mesme  immediatement  hange  in  presence  de 
Court." 


ONE  Brown  set  forth  in  libel  his  descent ;  that 
another  person,  in  way  of  defamation,  said  he 
was  no  gentleman,  but  descended  from  Brown,  the 
great  pudding-eater,  in  Kent ;  but  it  appearing  he  was 
not  so  descended,  but  from  an  ancient  fiimily,  he  that 
spoke  the  words  underwent  the  sentence  of  the  court, 
and  decreed  to  give  satisfaction  to  the  party  com- 
plaining.^ 

1  Rushworth,  Vol.  II.  pt.  2,  p.  1065. 
4 


74  CURIOSITIES   OF 

IN  Baker  v.  Pierce,^  Holt  C.  J.  said  :  "  I  remember 
a  story  told  by  Mr.  Justice  Twisden,  of  a  man 
that  had  brought  an  action  for  scandalous  words 
spoken  of  him,  and  upon  a  motion  in  arrest  of  judg- 
ment, the  judgment  was  arrested  ;  and  the  plaintiff 
being  in  court  at  that  time  said,  that  if  he  had 
thought  he  should  not  have  recovered  in  his  action, 
he  would  have  cut  his  throat." 


IN  Massachusetts,  in  a  recent  case  ^  it  was  said  that 
"  before  parties  were  made  competent  witnesses, 
it  was  the  practice  to  prove  their  intent  by  a  variety 
of  circumstances,  because  no  man  can  know  the  se- 
cret purposes  of  another's  heart  except  himself." 


LEVINZ  observes  "  that  the  judges  of  late  years 
have  had  a  greater  consideration  for  the  passing 
of  the  estate,  which  is  the  substance  of  the  deed,  than 
the  mannei'  how,  which  is  the  shadow."  ^ 


ON  a  question  whether  a  devisee  in  fee  could  dis- 
claim the  estate,  Mr.  Justice  Ventris  is  reported 
to  have  said  that  "  a  man  cannot  have  an  estate  put 
into  him  in  spite  of  his  teeth." 

1  2  Lcl.  Raym.  960. 

2  Fisk  V.  Chester,  8  Gray,  p.  508. 

3  3  Levinz,  372.   Cited  2  Saund.  97  b,  97  c,  6tli  ed. 


THE  LAW  REPORTERS.  75 

IN  the  celebrated  case,  Stockdale  v.  Hansard,^  the 
Sheriffs  of  London  were  imprisoned  hy  the  House 
of  Commons  for  a  contempt  in  doing  that  for  the 
not  doing  of  which  the  like  fate  would  have  awaited 
them  at  the  bar  of  the  Court  of  Queen's  Bench. 


MEDLYCOTT  v.  JOETIN^  was  a  case  upon  Mr. 
Serjeant  Hill's  will,  which  was  so  singularly 
confused,  that  but  for  the  respect  due  to  the  very 
learned  Serjeant,  it  might,  not  unreasonably,  have 
been  held  void  for  uncertainty.  The  will  of  Sir 
Samuel  Eomilly  was  also  inartificially  penned,  and 
that  of  Chief  Baron  Thomson  was  the  subject  of 
Chancery  proceedings.  So  also  were  the  wills  of 
Chief  Justice  Holt,^  Chief  Justice  Eyre,*  Mr.  Serjeant 
Maynard,^  Vernon,  the  eminent  chancery  counsel,^ 
Baron  Wood,^  Mr.  Justice  Vaughan,^  Francis  Vesey 
Junior,  the  reporter,^  and  Richard  Preston,  the  con- 
veyancer.i''  Chief  Justice  Saunders  appears  to  have 
made  a  speculative  devise,  upon  the  validity  of  which 

1  9  Ad.  &  El.  1.  2  2  Broderip  &  Biughara,  632. 

3  Viner  Ab.  Apportionment,  p.  18.  *  G.  Cooper,  156. 

5  Earl  of  Stamford  v.  Sir  John  Hobart,  3  Brown  P.  C.  31. 

6  Aclierley  v.  Vernon,  1  P.  Wms   783. 

7  Baker  v.  Bayldon,  31  Beavan,  209.  "  He  was  one  of  the  greatest  of 
pleaders."  Per  Hayes  J.  in  The  Queen  v.  Diplock,  10  Best  &  Smith, 
p.  175. 

8  Knight  V.  St.  John,  coram  Wood  V.  C.  (1862). 

9  Vesey  v.  Vesey,  coram  Kindersley  V.  C.  (1862). 

10  Whyte  o.  Preston,  coram  the  Master  of  the  Rolls  (1862). 


76  CURIOSITIES   OF 

his  executors,  Maynard,  Holt,  and  PoUexfen,  all  great 
lawj^ers,  were  divided  in  opinion.^  The  will  of 
Bradley,  the  celebrated  conveyancer,  was  set  aside  by 
Lord  Thurlow  for  uncertainty .^  And  a  late  learned 
Master  in  Chancery  directed  the  proceeds  of  his 
estate  to  be  invested  in  Consols  in  his  oion  name.^ 


THE  following  passage  is  taken  from  the  preface 
to  Lilly's  Eeports  (A.  D.  1719)  p.  xxix :  "I 
admit  that  good  forms  are  very  necessary,  where 
they  relate  to  the  subject-matter,  but  are  ridiculous 
where  tliey  do  not ;  as  for  instance,  the  form  of  a 
declaration  in  assault  and  battery  is  quare  vi  et  armis 
(the  defendant)  in  et  super  (the  plaintiff)  insultum 
fecit  et  baculis  gladiis  et  cultellis  verberavit  et 
vulneravit,  etc.  The  very  same  term  was  once  used 
by  a  skilful  attorney  in  an  action  against  the  defend- 
ant for  assaulting  the  plaintiff's  wife,  who  volun- 
tarily departed  from  her  husband,  and  lived  with 
the  defendant  in  adultery.  I  remember  great  advice 
was  taken  about  this  declaration,  and  that  it  was 
resolved  by  all  the  counsel  for  the  plaintiff,  that  the 
criminal  familiarity  of  the  defendant  was  very  prop- 
erly expressed  by  those  words,  in  et  super  (the  plain- 

1  Reports  of  Cases  in  the  Law  of  Real  Property  and  Conveyancing, 
App.  24. 

2  Martin's  Conveyancer's  Recital  Book,  35  note  (1834). 

3  Hayes  &  Jarman  Forms  of  Wills,  98  note,  7th  ed.     See  also  7  Notes 
of  Cases,  377;  2  Robertson  Eccl.  Rep.  140;  Bigge  v.  Bigge,  9  Jurist,  192. 


THE  LAW  REPORTERS.  77 

tiff's  wife)  insultum  fecit;  but  it  was  strenuously 
objected  against  the  words  vi  et  armis,  because  there 
was  an  apparent  proof  of  the  consent  and  compliance 
of  the  woman,  and  that  baculi  gladii  et  cultelli  were 
improper  instruments  to  carry  on  an  amorous  corre- 
spondence. After  a  long  debate,  a  very  grave  lawyer 
(whose  opinion  was  to  conclude  the  rest)  consented 
to  lay  down  the  cudgels,  but  would  not  leave  out  vi  et 
armis ;  and  his  reason  was,  because  they  must  keep 
up  to  the  ancient  and  approved  forms." 


THE  defendant  charged  the  plaintiff  with  having 
attempted  to  burn  the  defendant's  house.  Wray 
C.  J.  held  that  the  words  were  actionable,  assigning 
generally  as  the  reason,  that  "  by  such  speech  the 
plaintiff's  good  name  is  impaired."^ 


APEOHIBITION"  was  granted  on  a  Hbel  for 
saying  "  He  has  no  sense,  is  a  dunce  and  a 
blockhead ;  I  wonder  the  bishop  would  lay  his  hands 
on  such  a  fellow ;  he  deserves  to  have  his  gown 
pulled  over  his  ears  " ;  because  a  parson  is  not  pun- 
ishable in  the  Spiritual  Court  for  being  a  dunce  or  a 
blockhead,  more  than  another  man.^ 

1  Kdward's  Case,  Cro.  Eliz.  6. 

2  Coxeter  v.  Parsons,  11  Mod.  141  note. 


78  CURIOSITIES    OF 

BY  an  appeal  of  death  private  prosecutors  could 
insist  on  a  second  trial  for  life  after  an  acquit- 
tal, and  could  exercise  or  withhold  according  to  their 
caprice,  or  temper,  or  cupidity,  the  divine  attribute 
and  royal  prerogative  of  mercy.  But  such  is  the 
force  of  judicial  habit  that  we  find  the  very  distin- 
guislied  Chief  Justice  Holt,  in  the  reign  of  Queen 
Anne,  declaring  from  the  bench,  "  I  wonder  that  any 
Engiisliman  should  brand  an  appeal  with  the  name 
of  an  odious  prosecution  ;  I  look  at  it  as  a  true  badge 
of  English  liberty."  But  after  the  celebrated  case  of 
Ashford  v.  Thornton,^  the  legislature  looked  upon  this 
method  of  prosecution  in  an  entirely  different  light, 
and  it  was  abolished  by  59  Geo.  III.  ch.  46. 


SIE  MATTHEW  HALE  writes :  "  A  great  lawyer 
hath  been  much  blamed  for  burning  a  peer  on 
the  hand,  that  confessed  an  indictment  of  man- 
slaughter ;  and  it  was  the  only  error  of  note  that  the 
person  erred  in  to  my  observation."  ^ 

BEFORE  the  statute  30  Geo.  III.  women  from 
the  remotest  times  were  sentenced  to  be  burned 
alive  for  every  species  of  treason  ;  this  Blackstone  at- 
tributes to  the  regard  of  our  ancestors  for  "  the  decency 
due  to  the  sex."^ 

1  1  B.  &  AW.  405  (1818)  8  4  Bl.  Comm.  93. 

2  2  Hale  P.  C.  377. 


THE  LAW  REPORTERS.  79 

IT  is  often  said  satirically,  though  no  satire  was 
origuially  intended,  tluit  corporations  have  no 
souls.  It  would  seem  that  no  argument  is  necessary 
to  prove  this  legal  axiom.  Chief  Baron  Manwood, 
however,  established  it  by  a  syllogism,  in  which  it  is 
not  easy  to  detect  any  fallacy.  "  The  opinion  of  Man- 
wood  C.  f).  was  this,  as  touching  corporations  ;  that 
they  were  invisible,  immortal,  and  that  they  had  no 
soul,  and  therefore  no  subpoena  lieth  against  them, 
because  they  have  no  conscience  nor  soid ;  a  corpora- 
tion is  a  body  aggregate ;  none  can  create  sovds  but 
God ;  but  the  king  creates  them,  and  therefore  they 
have  no  souls.  And  this  was  the  opinion  of  Man- 
wood  Chief  Baron  touching  corporations."^ 

Sir  Sampson  Darrell's  Case.^ 

SIR  SAMPSON  DARRELL  was  fined  £5  for 
erecting  a  windmill  in  his  own  ground,  within 
the  forest,  and  Mr.  Attorney  ISToy  said  it  ought  not 
to  be  done,  because  it  frighted  the  deer,  and  also  drew 
company  to  the  disquiet  of  the  game. 

IIBEL  for  calling  a  man  a  knave :  prohibition  lies, 
-^  because  in  the  time  of  Henry  VI.  knave  was  a 
good  addition.^ 

1  2  Bulstrode,  233. 

2  W.  Jones,  293.     Transcribed  by  Mr.  Wallace  The  Reporters,  187, 
3(1  ed. 

3  Latch,  156.     1  Siderfin,  149. 


80  CURIOSITIES   OF 

THE  proposition  for  conducting  all  law  proceed- 
ings in  English  was  most  strenuously  opposed. 
The  reporters,  who  delighted  in  the  Norman  French, 
were  particularly  obstreperous.  "  I  have  made  these 
Reports  speak  English,"  says  Style  in  his  preface 
(A.  D.  1658),  "not  that  I  believe  they  will  be  thereby 
more  generally  useful,  for  I  have  been  always  and  yet 
am  of  opinion,  that  that  part  of  the  common  law 
which  is  in  English  hath  only  occasioned  the  making 
of  unquiet  spirits  'contentiously  knowing,  and  more 
apt  to  offend  others  than  to  defend  themselves ;  but 
I  have  done  it  in  obedience  to  authority,  and  to  stop 
the  mouths  of  such  of  this  English  age,  who,  though 
they  be  confessedly  different  in  their  minds  and  judg- 
ments, as  the  builders  of  Babel  were  in  their  lanafuafre, 
yet  do  think  it  vain,  if  jiot  impious,  to  speak  or  un- 
derstand more  than  their  own  mother  tongue."  And 
Bulstrode,  in  the  preface  to  the  Second  Part  of  his 
Eeports,  says  "that  he  had  many  years  since  per- 
fected the  work  in  French,  in  which  languat^e  he  had 
desired  it  might  have  seen  the  light,  being  most  proper 
for  it,  and  most  convenient  for  the  professors  of  the 
law." 

TWISDEN  JUSTICE  said  he  remembered  that  a 
shoemaker  brought  an  action  acfainst  a  man  for 
saying  he  was  a  cobbler ;  and  though  a  cobbler  be  a 
trade  of  itself,  yet  it  was  held  that  the  action  lay  in 
Chief  Justice  Glyn's  time.^ 

1  1  Mod.  19, 


THE  LAW  REPORTERS.  81 

KEEirrOED,  an  attorney,  was  plaintiff  in  bat- 
tery, and  the  case  M;as  thus :  He  was  walking 
in  the  market  (as  attorneys  do  too  nuich),  and  the 
defendant  and  he  had  some  angry  words  tliere,  upon 
which  the  defendant  did  press  to  go  by  him,  aud 
in  going,  by  reason  of  the  throng  of  people  there, 
he  jostled  the  plaintiff,  and  for  this  he  brought  this 
action,  in  which  if  an  assault  only  be  proved,  it  is  in- 
sufficient, and  holden  it  was  no  assault,  for  the  touch- 
ing him  or  jostle  was  to  another  end,  namely,  to  get 
by  him  in  the  throng,  and  not  to  beat  him,  etc.^ 


MEMOEANDUM.  —  One  Mr.  Guye  Faux  of 
the  parish  of  Leathley,  a  cavilleer,  had  a  cause 
heard  about  a  plunder,  upon  Monday  this  week  after 
dinner,  and  was  well  in  court,  and  damage  against 
him  a  hundred  pounds,  and  he  was  found  dead  next 
morning  npon  the  conceit  of  it,  as  was  supposed."  ^ 


THE  judge  did  put  back  the  jury  twice,  because 
they  offered  their  verdict  contrary  to  their  evi- 
dence, as  he  held  and  set  a  hundred-pound  fine  upon 
one  of  the  jury  who  had  departed  from  his  compan- 
ions ;  but  after,  upon  examination,  it  was  taken  off 
again,  for  that  it  did  appear  it  was  only  by  reason  of 
the  crowd,  and  some  of  his  fellows  were  always  with 
him.^ 

1  Clayton,  22.  2  ibid.  116.  8  Ibid.  31. 

4*  F 


82  CURIOSITIES   OF 

A  CASE  was  recently  determined  by  the  Court 
of  Exchequer  Chamber  which  in  the  opinion 
of  Mr.  Justice  Blackburn  involved  "  a  nice  and  puz- 
zling question."  The  question  was  whether  the  law  as 
to  the  liability  of  gratuitous  bailees  of  personal  prop- 
erty applied  to  a  hitilding.  The  plaintiff  loaned  his 
shed  to  the  defendant  to  make  a  signboard,  and  D., 
a  carpenter  employed  by  the  defendant,  while  at 
work  lighted  his  pipe  from  a  match  with  a  shaving, 
which  he  dropped,  and  thereby  set  fire  to  the  shav- 
ings on  the  ground,  by  which  the  shed  was  burned. 
A  majority  of  the  Court  of  Exchequer  Chamber, 
affirming  the  judgment  of  the  Court  of  Exchequer, 
held  that  the  defendant  was  not  liable,  on  the  ground 
that  the  loan  of  the  shed  was  a  mere  license  to  use 
the  shed,  revocable  at  any  time.^ 


IN  very  early  times  "  every  one  was  to  have  a  reme- 
dial writ  from  the  King's  Chancery,  according  to 
his  plaint,"  of  which  the  following  is  the  most  an- 
cient form :  — 

Eex  etc.  [to  the  Judge.]  Questus  est  nobis  A. 
quod  B.  etc.  Et  ideo  tibi  (vices  nostras  in  hac  parte 
committentes)  prsecipimus  quod  causam  illam  audias 
et  legitimo  fine  decidas.^ 

1  Williams  v.  Jones,  3  H.  &  C.  256,  602  (1865).     Story  on  Bailments, 
§  223  a,  8th  ed. 

2  MiiTour  of  Justices,  8. 


THE  LAW  REPORTERS.  83 

IJST  Manby  v.  Scott,i  ^i^.  Justice  Wyndham  speci- 
fies the  following  among  the  "many  inconven- 
iences wliich  must  ensue"  if  the  husband  shall  be 
bound  by  the  contract  of  the  wife :  — 

1.  The  husband  will  be  accounted  the  common 
enemy;  and  the  mercer  and  the  gallant  will  unite 
with  the  wife,  and  they  will  combine  their  strength 
against  the  husband. 

3.  Wives  will  be  their  own  carvers,  and,  like  hawks, 
will  fly  abroad  and  find  their  own  prey. 

4.  It  shall  be  left  to  the  pleasure  of  a  London 
jury  to  dress  my  wife  in  such  apparel  as  they  think 
proper. 

5.  Wives  Avho  think  that  they  have  insufficient  will 
have  it  tried  by  a  mercer  whether  their  dress  is  not 
too  mean,  and  this  will  make  the  mercer  judge 
whether  he  will  dispose  of  his  own  goods  or  not. 


IN"  the  case  of  Hookes  v.  Sw^aine,^  Twisden  Justice 
said  he  remembered  a  nice  case.  Sir  William 
Fish  w^as  bound  by  obligation  to  pay,  on  a  certain  day, 
in  Gray's  Inn  Hall,  £50  generally,  without  saying  of 
money ;  and  therefore  upon  the  day  when  the  gentle- 
men were  at  supper.  Sir  William  came  in,  and  ten- 
dered fifty -pound  w^eight  of  stone;  and  adjudged  no 
tender. 

1  Sklerfin,  109  (1662,  1663).     2  Smith  L.  C.  418,  6tli  Loudon  ed. 
2  1  Siderfin,  151. 


84  CURIOSITIES   OF 

SO  completely  does  a  pardon  of  treason  or  felony- 
extinguish  the  crime,  that  when  granted  to  a 
man,  even  after  conviction  or  attainder,  it  will  enable 
him  to  have  an  action  of  slander  against  another  for 
calling  him  traitor  or  felon ;  "  because  the  pardon 
makes  him  as  it  were  a  new  man,  and  gives  him 
a  new  capacity  and  credit."  ^  "  In  the  eye  of  the  law 
the  offender  is  as  innocent  as  if  he  had  never  com- 
mitted the  offence."^ 


IN  the  Year-Books,  30  &  31  Edw.  I.  pp.  503-507 
is  tliis  case  :  A  man  was  arraigned  for  felony,  but 
on  producing  a  charter  of  pardon  was  discharged. 
Another  man  was  arraigned  for  harboring  him,  and, 
notwithstanding  the  acquittal  of  the  principal,  he  M^as 
made  to  pay  a  fine.  The  report  concludes  thus  :  "  Note, 
the  Justices  did  this  rather  for  the  King's  profit  than 
in  accordance  with  law ;  for  they  gave  this  decision 
*  in  terrorem.' " 

A  wo  MAN  libelled  in  the  Arches  against  another 
for  calling  of  her  jade,  and  a  prohibition  was 
prayed  and  granted,  because  the  words  were  not  defam- 
atory. And  Eeeve  said  that  for  whore  or  bawd  no 
prohibition  would  lie,  but  they  doubted  of  quean.^ 

1  2  Hawkins  P.  C.  Cli.  37,  §  48.     Vol.  II.  p.  548,  ed.  Curwood. 

2  Ex  parte  Garland,  4  Wallace,  p.  380.     United  States  v.  Padelford,  9 
Wallace,  p.  542. 

8  March,  pi.  235. 


THE  LAW  REPORTERS.  85 

AN"  action  of  false  imprisonment  brought  against 
a  constable,  who  pleaded  not  guilty,  the  defend- 
ant did  s]iow  in  evidence,  that  he  came  to  search 
in  time  of  the  plague  for  lodgers  in  the  town,  and  he 
found  a  stranger  and  questioned  him  which  way  he 
came  into  the  town;  who  answered,  Over  the  bridge, 
and  the  judge  conceived  this  to  be  a  scornful  answer 
to  an  ofticer,  and  because  he  had  no  pass,  but  trav- 
elled without  one,  and  gave  such  an  answer,  the  de- 
fendant did  offer  to  apprehend  him,  and  the  plaintiff 
thereupon  being  present  said  to  the  defendant,  He 
shall  not  go  to  prison,  but  yet  offered  to  pass  his  word 
for  his  forthcoming,  upon  which  the  defendant  did 
commit  the  plaintiff,  and  it  was  ruled  upon  evidence 
there  w^as  good  cause  to  commit  the  plaintiff  for  oppos- 
ing the  constable,  though  but  verbally,  in  his  office, 
who  is  so  ancient  an  officer  of  the  Commonwealth.^ 


IF  B.  have  a  right  of  entry  into  his  house,  he  ought 
to  have  a  common  entrance  at  the  usual  door,  and 
shall  not  be  made  to  enter  at  a  hole,  a  back  door,  or  a 
chimney ;  and  if  they  leave  the  common  door  open 
and  make  a  ditch,  so  that  B.  cannot  enter  without 
skipping,  the  condition  is  broken.  So  if  I  am  obliged 
to  suffer  J.  S.  to  have  a  way  over  my  land,  and  when 
I  see  him  coming,  I  take  him  by  the  sleeve  and  say  to 
him,  "  Come  not  there ;  for  if  you  do,  I  will  pull  you 
by  the  ears,"  the  condition  is  broken.^ 

1  ShelVeld's  Case,  Clayton.  10.  *  Latch,  47. 


86  CURIOSITIES   OF 

THEEE  are  some  things  personal,  and  so  insepara- 
bly connected  to  a  man's  person,  that  he  cannot 
do  them  by  another ;  as  the  doing  of  homage  fealty. 
So  it  is  holden  that  a  lord  may  beat  his  villein, 
for  cause  or  without  cause,  and  the  villein  is  without 
remedy ;  but  if  the  lord  command  another  to  beat  him 
without  cause,  who  does  accordingly,  the  villein  shall 
have  an  action  of  battery  against  him.  So  if  the  lord 
distrain  his  tenant's  cattle,  when  nothing  is  behind, 
yet  the  tenant,  for  the  reverence  and  duty  that  apper- 
tains to  the  lord,  shall  not  have  trespass  vi  et  armis 
against  him;  but  if  the  lord  command  his  bailiff 
or  servant  to  distrain,  secus.^ 


IN  the  report  of  one  of  the  Scotch  Appeal  Cases  in 
the  House  of  Lords,  we  find  this  marginal  note  :  — 

"  Per  Tlie  Lord  Chancellor :  Mrs.  Eeid  is  to  be 
pitied  for  the  course  into  which  she  has  been  dragged, 
evidently  without  any  consciousness  on  her  part  of 
the  extreme  folly  of  these  proceedings."  ^ 

And  in  the  very  next  case  in  the  same  volume  are 
these,  and  only  these,  marginal  notes  :  — 

"  Per  Lord  Chelmsford  :  It  is  really  lamentable  to 
think  of  the  enormous  expense  incurred  in  this  case." 

"  Per  Lord  Westbury :  Such  things  occur  in  the 
appeals  from  Scotland  day  by  day."  ^ 

1  Comb's  Case,  9  Rep.  76  a. 

2  Keith  V.  Raid,  Law  Rep.  2  H.  L.  Scotch,  39  (1870). 

3  Fraser  v.  Crawford,  Law  Rep.  2  H.  L.  Scotch,  42. 


THE  LAW  REPORTERS.  87 

"nn)EAYING  general  relief,"  said  Lord  Hardwicke,i 
-L  "  is  sufficient  though  the  plaintiff  should  not 
be  more  explicit  in  the  [particular]  prayer  of  the  bill ; 
and  Mr.  Eobins,  a  very  eminent  counsel,  used  to  say, 
'  General  relief  was  the  best  prayer  next  to  the  Lord's 
Prayer ! ' " 

IN"  his  Abridgment,^  Eolle  says,  "  Jeo  aie  oie  mon 
seigneur  Coke  a  citer  two  verses  pur  ceo  de  Sir 
Thomas  Moore :  — 

'  Three  things  are  to  be  helpt  in  conscience  : 
Fraud,  accideut,  and  things  of  confidence.'  " 


ONE  suggestion  by  ]\Ir.  John  Reeves,  the  author 
of  the  "  History  of  English  Law,"  in  his  elabo- 
rate essay  on  the  effect  of  the  Treaty  of  Peace  of 
1783,  is  amusing  enough  to  be  quoted.:  "  I  have 
heard  it  asked,  if  the  king  was  to  send  his  writ  to 
command  the  attendance  of  ]SIr.  Jefferson  in  this 
kingdom  ?  —  I  agree  he  would  not  come ;  but  that 
would  be  no  test  of  the  law  upon  the  subject ;  it  is 
an  inconvenience  in  point  of  fact."  The  case  thus 
put  recalls  that  of  Glendower  and  Hotspur  :  — 

Glendoioer.    I  can  call  spirits  from  the  vasty  deep. 
Hotspur.    Why,  so  can  I,  or  so  can  any  man  ; 
But  will  they  come  when  you  do  call  for  them  ?  ^ 

1  Cook  f.  Martyn,  2  Atkyns,  3.  21  Rolle  Abr.  374. 

8  First  Part  of  King  Henry  IV^.  Act  III.  Scene  1.     For  this  passage  I 
am  indebted  to  a  writer  in  The  American  Law  Review,  Vol.  IV.  p.  362. 


88  CURIOSITIES   OF 

IN  The  Emperor  of  Austria  v.  Day,i  Lord  Campbell 
Lord  Chancellor  observed  :  "  Notwithstanding  my 
sincere  respect  for  tlie  authority  of  that  great  Ameri- 
can jurist,  Justice  Story,  I  cannot  concur  with  him  in 
his  recommendation  of  a  mysterious  obscurity  to  be 
preserved  by  courts  of  equity  respecting  special  in- 
junctions, and  the  caution  which  should  make  them 
'  decline  to  lay  down  any  rule  which  shall  limit  their 
power  and  discretion  as  to  the  particular  cases  in 
which  such  injunctions  should  be  granted  or  with- 
held.' ^  The  recommendation  of  mystery  and  obscu- 
rity in  treating  of  judicial  jurisdiction  is  only  fit  for 
the  .Star  Chamber,  which  was  called  'a  Court  of 
Criminal  Equity.' " 

"  nnHE  case  seems  to  fall  very  much  within  the 
-L  quaint  expressions  of  Lord  Hobart  in  The 
Earl  of  Clanrickard's  Case,^  where  that  very  learned 
judge  says  :  '  I  do  exceedingly  commend  the  judges 
that  are  curious  and  almost  subtle,  astuti  (which  is 
the  word  used  in  the  Proverbs  of  Solomon '  in  a  good 
sense  when  it  is  to  a  good  end),  to  invent  reasons  and 
means  to  make  acts  according  to  the  just  intent  of 
the  parties,  and  to  avoid  wrong  and  injury  wliich  by 
rigid  rules  might  be  wrought  out  of  the  act.'  "  * 

1  3  De  Gex,  Fisher  &  Jones,  211,  238. 

2  Story  Equity  Jurisprudence,  Vol.  II.  §  959  b. 

3  Hobart,  277. 

4  Judgment  of  Byles  J.  iu  Hayue  v.  Cummings,  16  C.  B.  N.  S.  p. 

428. 


THE  LAW  REPORTERS.  89 

THE  manner  in  which  Sir  John  Strange  occasion- 
ally comments  on  the  opinion  of  the  court,  in 
his  Eeports,  is  quite  amusing.  To  a  remark  of  the 
Court  he  appends  the  following  note :  "  It  was  only 
Mr.  J.  Wright  who  said  this ;  and  see  The  King  v. 
The  Inhabitants  etc.  of  Bishopside,  Trin.  T.  1755. 
B.  E.  adjudged,  '  contra'  :  and  in  reference  to  another 
part  of  the  same  opinion,  he  says  :  '  It  was  only  Mr. 
J.  Chappie,  who  said  this :  and  he  was  wrong ;  for 
the  Act  expressly  requires '  etc." 


IN  Manby  v.  Scott,^  among  the  reasons  for  the 
second  "  point  there  established,"  it  is  said :  "  In 
the  Spiritual  Court,  such  bad  women  as  have  violated 
their  vows  shall  have  such  provision  as  clerks  con- 
vict,2  and  shall, be  fed  with  the  bread  of  affliction  and 
the  water  of  adversity." 


"  nrmE  law  did  not  condescend  to  take  notice  of 
-L    base  animals.     A  dog  was  not  the  subject  of 
larceny  at  common  law,  because,  as  it  was  said,  a 
man  shall  not  hang  for  a  dog.     7  Eep.  18  a."  ^ 

1  1  Siderfin,  109.     2  Smith  L.  C.  422,  6th  London  ed. 

2  Staunforde,  140. 

8  Willes  J.  in  Regina  v.  Martin,  La\y  Rep.  1  C.  C.  p.  59.     See  Eegina 
«.  Robinson,  Bell  C.  C.  34. 


90  CURIOSITIES   OF 

IN  the  reign  of  Henry  VIII.  a  statute  was  passed, 
wliereby  it  was  enacted  that  every  woman  about 
to  be  married  to  the  King,  or  any  of  his  successors, 
not  being  a  true  maid,  should  disclose  her  disgrace  to 
him  under  the  penalty  of  treason ;  and  that  all  other 
persons  knowing  the  fact,  and  not  disclosing  it,  should 
be  subject  to  the  lesser  penalty  of  misprision  of 
treason.^  This  law,  which  was  afterwards  repealed, 
as  "trespassing  too  strongly  as  well  on  natural  justice 
as  female  modesty,"  ^  continued  in  force  during  the 
remainder  of  this  reign,  and,  according  to  Lord 
Campbell,^  "  so  much  frightened  all  the  spinsters  at 
Henry's  court,  that,  instead  of  trying  to  attract  his ' 
notice,  like  Anne  Boleyn,  Jane  Seymour,  and  Cath- 
erine Howard,  in  the  hope  of  wearing  a  crown,  they 
shunned  his  approach  as  if  he  had  been  himself  the 
executioner,  and  they  left  the  field  open  for  widows, 
who  could  not  by  any  subtlety  of  Crown  lawyers  be 
brought  within  its  operation." 


THEEE  is  a  curious  case  in  Coke's  "  Second 
Institute,"  p.  562,  ed.  1797.  Indictment  against 
a  parson  for  conspiracy,  who  pleads  that  he  was 
"  communis  advocatus,"  and  so  justified  as  attorney 
-to  the  other.  It  was  found  that  he  was  "  communis 
advocatus,"  and  not  guilty 

1  Statutes  of  the  Realm,  Vol.  IV.  p.  859. 

2  1  Bl.  Comm.  222. 

8  Lives  of  the  Lord  Chancellors,  Vol.  II.  p.  108,  5th  ed. 


THE  LAW  REPORTERS.  91 

IN  the  quaint  language  of  Hide  J.  in  Manby  v. 
Scott,  in  the  Exchequer  Chaniber,i  if  "  the  wife 
will  have  a  veh'et  gown  and  a  satin  petticoat,  and 
the  husband  thinks  mohair  or  farendon  for  a  gown, 
and  watered  tabby  for  a  petticoat,  is  as  fashionable, 
and  fitter  for  his  quality,  who  is  to  decide  the  con- 
troversy ?  Not  the  wife,  nor  a  jury  it  may  be  con- 
sisting of  drapers  and  milliners,  but  the  husband."  ^ 


IN  the  trial  of  Algernon  Sidney,  in  one  respect 
counsel  deserved  rebuke,  and  even  Jeffries  was 
not  unjust  in  administering  it.  Lord  Chief  Justice : 
"  Look  you,  gentlemen  of  the  jury.  There  are  some 
eentlemen  at  the  bar,  as  we  are  informed,  are  apt  to 
whisper  to  the  jury.  It  is  no  part  of  their  duty ; 
nay,  it  is  against  their  duty."  ^ 

NOY  reports  a  'case  in  the  Star  Chamber  as 
-  follows :  "  The  defendants  upon  a  riot,  in  de- 
stroying sixteen  foot  of  a  hedge  for  a  commoner. 
There  they  were  fined  every  one  40  s.  And  the  plain- 
tiff for  suing  in  that  court  for  that  riot  was  fined  £  20. 
And  so  both  parties  were  fined,  which  was  seldom 
seen  before."^ 

1  1  Mod.  124,  138. 

2  Quoted  in  the  Judgment  of  Blackburn  J.  in  Bazeley  v.  Forder,   9 
Best  &  Smith,  p.  604;  Law  Rep.  3  Q.  B.  p.  564. 

3  9  Howell  State  Trials,  837. 

*  Bellew  V.  Bullocke,  Noy,  101. 


92  CURIOSITIES   OF 

IN  Tremaine's  "  Placitae  Coronse,"  pp.  34,  35,  is  a 
precedent  of  an  indictment  against  Sir  John 
Johnston,  a  Scotch  knight,  for  stealing  and  marrying 
one  Mary  Wharton,  an  heiress,  "to  the  great  dis- 
pleasure of  Almighty  God,  to  the  great  disparagement 
of  the  said  Mary,  and  to  the  utter  sorro^v  and  afflic- 
tion of  her  friends."  Tremaine  "wntes  in  a  note : 
"Sir  John  Jolmston  was  a  stranger  to  the  English 
laws,  and  when  he  was  called  to  judgment  was  much 
surprised,  and  asked  if  it  was  a  hanging  matter ;  but 
nevertheless  sentence  was  given  against  him,  and  he 
was  executed  on  a  gibbet  before  the  lady's  door  in 
Great  Queen  Street." 


IN"  an  appeal  of  death,  the  defendant  wa^ed  battel, 
and  was  slain  in  the  field  ;  yet  judgment  was 
given  that  he  should  be  hanged,  which  the  judges 
said  was  altogether  necessary,  for  otherwise  the  lord 
could  not  have  a  writ  of  escheat.^ 


I]Sr  the  Year-Book,  22  Henry  YI.,  we  find  counsel 
responding  to  one  of  the  judges,  who  was  putting 
a  case  to  him  from  the  bench  about  making  a  view  in 
assize  :  "  En  le  nom  de  Dieu,  Sir,  comment  poit  le 
vieu  estre  fait  en  ce  cas  ?  "  ^ 

1  Co.  Litt.  390  note. 

2  22  Hen.  VI.  p    11,  about  the  middle  of  the  page,  quoted  in  The 
Reporters,  73,  3d  ed. 


THE   LAW  REPORTERS.  93 

COOPER  brought  an  action  upon  the  case  against 
Witham  and  his  wife,  for  that  the  wife,  jnali- 
ciously  intending  to  marry  liim,  did  often  affirm  that 
she  was  sole  and  unmarried,  and  importuned  et  stre- 
nue  requisivit  the  plaintiff  to  marry  her ;  to  wliich 
affirmation  he  gave  credit,  and  married  her,  when  in 
facto  she  was  wife  to  the  defendant;  so  that  the 
plaintiff  was  much  troubled  in  mind,  and  put  to  great 
charges,  and  much  damnified  in  his  reputation.  He 
had  a  verdict,  but  no  judgment;  for  by  Twisden 
Justice  the  action  lies  not,  because  the  tiding  here 
done  is  felony :  no  more  than  if  a  servant  be  killed, 
the  master  cannot  have  an  action  per  quod  servitium 
amisit,  quod  curia  concessit.^ 


IIST  an  early  case  in  Massachusetts,^  Mr.  Justice 
Parker  expressed  his  opinion  in  the  following 
forcible  language  :  "  It  would  seem  a  disgraceful  occu- 
pation of  the  courts  of  any  country  to  sit  in  judg- 
ment between  two  gamblers,  in  order  to  decide  Avhich 
was  the  best  calculator  of  chances,  or  which  had 
the  most  cunning  of  the  two.  There  could  be  but 
one  step  of  degradation  below  this,  which  is,  that 
the  judges  should  be  the  stakeholders  of  the  par- 
ties." 

1  1  Siderfin,  375. 

2  Amory  v.  Gilman,  2  Mass.  p.  6. 


94  CURIOSITIES   OF 

IN  a  case  in  Gould sborough,  p.  96,  one  of  the  coun- 
sel said  that  he  had  searched  all  the  books,  and 
"  there  is  not  one  case  "  etc. ;  to  which  Chief  Justice 
Anderson  responded  :  "  What  of  that  ?  Shall  not  we 
give  judgment  because  it  is  not  adjudged  in  the  books 
before  ?  We  will  give  judgment  according  to  reason ; 
and  if  there  be  no  reason  in  the  books  I  will  not 
regard  them."  ^ 

w 

"  /^^^  of  the  cases  in  Littleton,"  says  Mr.  Wal- 
Vv'  lace,^  "  would  present  but  a  bad  idea  of  the 
manners  at  Oxford  in  1625.  We  find  at  least  the 
Principal  of  St.  Mary's  Hall  libelling  one  of  the 
Masters  of  Art,  and  a  Commoner  of  the  same  Hall, 
'  pur  ceo  que  il  appel  luy  Eed  Nose,  Mamsey  Nose, 
Copper-nose  Knave,  Eascal,  and  Base  Fellow  et  autres 
words  non  dissonant.'  ^ 

"  Another  case  *  speaks  as  ill  of  the  behavior  of 
communicants  in  those  days  of  Archbishop  Laud. 
The  Reverend  Mr.  Burnet  sues  one  Symons  in  the 
High  Commission  Court,  '  pur  ces  que  appel  luy  fool 
en  leglise  et  dit  a  lui  Sirrah !  Sirrah ! '  and  because, 
moreover,  he,  Burnet,  being  vicar  there,  Symons,  at 

1  "  Though  a  case  is  of  first  impression,  if  it  shows  a  concurrence  of 
loss  and  damage  arising  from  the  act  complained  of,  the  action  will  be 
maintainable."  Lord  Campbell  Lord  Chancellor  in  Lynch  v.  Knight, 
9  House  of  Lords  Cases,  577. 

2  The  Reporters,  19.3,  3d  ed. 

8  Ralph  Bradwell's  Case,  Littleton,  9. 
■*  Burnet  v.  Symons,  Littleton,  154. 


THE  LAW  REPORTERS.  95 

Whitsimtide,  after  tlie  Communion  was  ended,  took 
the  cup  and  drank  all  the  wine  that  was  left ;  and 
that,  when  Mr.  Burnet  took  the  cup  from  him, 
'  Symons  violently  reprise  ces  hors  de  ses  mains 
arriere  in  facie  Ecclesise  devant  que  les  parishioners 
fueront  tons  dehors  leglise.'  It  is  curious,  and  per- 
liaps  worth  noting,"  continues  Mr.  Wallace,  "  that  the 
court  decided  that  all  the  wine  that  was  left  after  the 
Communion  belonged  to  the  parson.  Tlie  same  dec- 
laration will  be  found,  I  believe,  in  the  rubric  to  the 
Book  of  Common  Prayer,  printed  in  the  time  of 
Charles  II.  It  shows  the  doctrine  of  that  day,  though 
at  present  a  special  and  more  reverent  provision  is 
made  for  the  case." 


IlSr  EoUe's  Eeports,  Vol.  I.  p.  286,  in  an  action  for 
words,  the  case  is,  "  Home  dit,  Sir  Th.  Holt  hath 
taken  a  cleaver  and  stricken  his  cook  upon  the  head, 
so  that  one  side  of  the  head  fell  upon  one  shoulder, 
and  the  other  upon  the  other  shoulder,  et  ne  averr 
que  le  cook  fuit  mort ;  et  pur  ceo  fuit  adjudge  nemy 
bon "  ;  the  cook's  death,  after  the  splitting  of  his 
head,  being  matter  of  inference  only.  ]\Ir.  Wallace 
says  this  case  may  be  commended  to  Mr.  Chitty,  who 
may,  perhaps,  reconcile  the  matter  of  pleading  in- 
volved in  it  with  the  doctrines  of  Medical  Jurispru- 
dence. 


96  CURIOSITIES   OF 

THE  gravity  of  the  poor  laws  was  enlivened,  and 
the  sterility  of  settlement  cases  agreeably  re- 
freshed, by  a  catch  introduced  by  Sir  James  Burrow 
into  the  report  of  The  King  v.  Norton.^  The  reporter 
says :  "  I  do  not  find  the  case  of  Shadwell  and  St. 
John's  Wapping  [which  had  been  cited  in  the  argu- 
ment] in  any  printed  book  or  manuscript.  But  I 
guess  it  to  be  the  same  case  which  I  have  heard  re- 
ported in  the  form  of  a  catch,  to  the  following  effect 
(if  my  memory  serves  me  right) :  — 

' '  A  Woman  having  a  Settlement, 

Married  a  Man  with  none  : 
The  Question  was,  he  being  dead, 

'  If  that  she  had,  was  gone.' 
Quotli  Sir  John  Pratt  -  —  '  Her  Settlement 

Suspended  did  remain 
Living  the  husband  :  But,  him  dead, 

It  doth  revive  again.'  " 

Chokus  of  Puisne  Judges. 
Living  the  Husband  :  But,  him  dead, 
It  doth  revive  again. 


IT  is  a  rule  of  law,  that  Idem  non  potest  esse  agens 
et  patiens  ;  and  therefore  a  man  cannot  present 
himself  to  a  benefice,  nor  sue  himself.^  ISTo  man  can 
summon  himself;  and  therefore  if  a  sheriff  suffer  a 
common  recovery,  it  is  error,  because  he  cannot  sum- 

1  Burrow  S.  C.  124.  8  Littleton,  147  b. 

2  Then  Lord  Chief  Justice. 


THE  LAW  REPORTERS.  97 

mon  himself.^  A  man  cannot  be  both  judge  and 
party  in  a  suit ;  and  therefore  if  a  judge  of  the  Com- 
mon Pleas  be  made  judge  of  the  King's  Bench, 
though  it  be  but  hac  vice,  it  determines  his  patent 
for  the  Common  Pleas ;  for  if  he  should  be  judge 
of  both  benches  together,  he  should  control  his  own 
judgment;  for  if  the  Common  Pleas  err,  it  shall  be 
reformed  in  the  King's  Bench.^  Littleton,  Chief 
Justice  of  the  Common  Pleas,  was  made  Lord  Keeper, 
yet  continued  Chief  Justice.  And  Sir  Orlando  Bridge- 
man  was  both  Lord  Keeper  and  Lord  Chief  Justice 
of  the  Common  Pleas  at  the  same  time,  for  these 
places  are  not  inconsistent.^ 


A  few  years  ago,  a  learned  member  of  Parliament 
brought  in  a  bill  with  the  double  object  of 
providing  public  prosecutors  for  England,  and  making 
it  a  statute  offence  for  a  servant  to  steal  his  master's 
corn  for  the  purpose  of  feeding  the  master's  horse. 


A  guest  comes  into  a  common  inn,  and  the  host 
appoints  him  his  chamber,  and  in  tlie  niglit 
the  host  breaks  into  his  guest's  chamber  to  rob  him : 
this  is  burglary.^ 

1  Dyer,  188  a.     Owen,  51.  8  i  Siderfin,  338,  365. 

-  Cio.  Car.  GOO.  *  Dalton,  cap.  151,  in  nota. 

5  G 


98  CURIOSITIES   OF 

THE  case  of  The  King  v.  Burford  is  thus  reported 
in  Ventris  ^ :  "  He  was  indicted,  for  that  he 
scandolose  et  contemptuose  propalavit  et  publicavit 
verba  sequentia,  viz. :  That  none  of  the  justices  of 
the  x)eace  do  understand  tlie  Statutes  for  the  Excise, 
unless  Mr.  A.  B.,  and  he  understands  hut  little  of 
them  ;  no,  nor  many  parliament-men  do  not  under- 
stand them  upon  the  reading  of  them.  And  it  Avas 
moved  to  quash  the  indictment,  for  that  a  man  could 
not  be  indicted  for  speaking  such  words  ;  and  of  that 
opinion  was  the  court :  But  they  said  he  might  have 
been  bound  to  his  good  behavior."  If  a  man  was 
indicted  in  this  country  at  the  present  day  for  speak- 
ing similar  words,  he  might  with  great  propriety  plead 
the  truth  in  justihcation. 


KELYjSFG  reports:  "At  the  Lent  Assizes  at 
Winchester  (18  Car.  II.)  the  clerk  appointed 
by  the  bishop  to  give  clergy  to  the  prisoners  being 
about  to  give  it  to  an  old  thief,  I  directed  him  to 
deal  clearly  with  me,  and  not  to  say  'legit'  in  case  he 
could  not  read  ;  and  thereupon  he  delivered  the  book 
to  him,  and  I  perceived  the  prisoner  never  looked  on 
the  book  at  all,  and  yet  the  bishop's  clerk,  upon  the 
demand  of  '  legit  or  non  legit  ? '  answered  '  legit.' 
And  thereupon  I  told  him  I  doubted  lie  was  mistaken, 
and  had  the  question  again  put  to  him;  whereupon 

1  1  Ventris,  16. 


THE  LAW  REPORTERS.  99 

he  answered  again,  sometliing  angrily,  '  legit.'  Then 
I  bid  the  clerk  of  assize  not  to  record  it,  and  I  told 
the  parson  that  he  was  not  the  judge  whether  the 
culprit  could  read  or  no,  but  a  ministerial  officer  to 
make  a  true  report  to  the  court.  And  so  I  caused  the 
prisoner  to  be  brought  near,  and  delivered  him  the 
book,  when  he  confessed  that  he  could  not  read. 
Whereupon  I  told  the  parson  that  he  had  unpreached 
more  that  day  than  he  could  preach  up  again  in  many 
days,  and  I  fined  him  five  marks."  ^ 


IN  Lambard's  "  Eirenarcha,"  p.  68  (1581),  it  is 
written  :  "  Of  this  kind  of  punishment  [not  capi- 
tal] our  old  law,  making  pretious  estimation  of  the 
lives  of  men,  had  more  sortes  than  we  now  have, 
as  pulling  out  the  tongue  for  false  rumours,  cutting 
off  the  nose  for  adultery,  taking  away  the  privy  parts 
for  counterfeiting  of  money  etc." 


IN  the  preface  to  his  Eeports  (A.  D.  1668),  Carter 
writes  :  "  In  the  arguments  of  Chief  Justice  Bridge- 
man  methinks  I  find  that  evisceratio  causae,  as  the 
Eoman  orator  calls  it,  an  exact  anatomy  of  the  case, 
and  a  dexterous  piercing  into  the  very  bowels  of 
it." 

1  Kelyng,  p.  51. 


100  CURIOSITIES   OF 

THE  judges  determined  that  Lord  Audley's  wife 
might  give  evidence  against  him,  for  having 
aided  one  of  his  servants  in  committing  a  rape  npon 
herself.  They  held  that  where  a  wife  is  the  party 
grieved,  and  on  whom  the  crime  is  committed,  she 
is  to  be  admitted  a  witness :  and  a  curious  reason 
assigned  is,  that  in  such  a  case  a  villain  may  be  a 
witness  against  his  lord.^ 


IN  a  recent  case^  Mr.  Justice  Byles  observed :  "  I 
was  much  struck  with  the  quotation  from  Web- 
ster's Dictionary  where  one  of  the  definitions  given 
of  '  tenant '  is,  one  Avho  has  the  occupation  or  tem- 
porary possession  of  lands  or  tenements  wliose  title 
is  in  another."     The  quotation  is  from  Cowley  :  — 

0  fields,  0  woods,  0,  when  shall  I  be  made 
The  happy  tenant  of  your  shade  ? 


AS  a  general  rule  a  piece  of  paper  or  parchment, 
whether  blank  or  inscribed  with  any  characters, 
is  the  subject  of  larceny.  But  there  are  at  common 
law  two  exceptions :  first,  a  muniment  of  title  to  land, 
which,  it  is  held,  savors  of  the  realty;  secondly,  a 
written  paper,  which,  is  mere  evidence   of  a   right, 

1  3  Howell  state  Trials,  402,413.     Hutton,  115,  116. 

2  Birks  V.  Allison,  9  Jurist  N.  S.  694,  695.     13  C.  B.  N.  S.  12,  23. 


THE  LAW  REPORTERS.  101 

resting  in  contract  only,  like  a  bill,  note,  bond,  or 
exeoutory  agreement.  A  reason  given  in  both  these 
cases  is  this,  that  the  documents  are  of  no  use  to  any 
but  the  owner,  and  therefore  are  not  in  danger  of 
being  stolen.  On  which  it  has  been  well  remarked, 
that  "  if  I  steal  a  skin  of  parchment  worth  1  s.  it  is 
felony,  but  when  it  has  £10,000  added  to  its  value  by 
what  is  written  upon  it,  then  it  is  no  offence  to  take 
it  away."  ^  These  exceptions  are  palpably  capricious 
and  unreasonable,  and  are  not  to  be  extended.  There- 
fore it  has  been  held  that  a  pawnbroker's  ticket  may 
be  the  subject  of  larceny.^ 


IN  "  The  Epistle  Dedicatory "  to  Croke's  Reports, 
Sir  Harbottle  Grimston  writes  of  the  reporter, 
his  father-in-law,  that  he  was  continued  a  judge  of 
the  Court  of  King's  Bench  "  till  a  certiorari  came 
from  the  great  Judge  of  heaven  and  earth  to  remove 
him  from  a  human  bench  of  law  to  a  heavenly  throne 
of  glory." 


"TT  was  pleaded  on  belialf  of  a  Hundred  charged 
-L  with  a  loss  incurred  by  robbery  on  Gad's  Hill, 
that,  time  out  of  mind,  it  had  been  customary  to  rob 
upon  Gad's  Hill. 

1  Rex  V.  Westbeer,  2  Strange,  1133. 

2  Regiiia  v.  Morrison,  Bell  C.  C.  158. 


102  CURIOSITIES   OF 

A  the  attorney  of  B.  brought  an  action  against 
C.  for  saying  to  B.,  "  Your  attorney  is  a  brib- 
ing knave,  and  hath  taken  twenty  pounds  of  you  to 
cozen  me."  Judge  Warburton  was  of  opinion  that  the 
words  were  not  actionable,  for  an  attorney  cannot  take 
a  bribe  of  his  own  client ;  but  Lord  Hobart  said  he 
miglit  when  the  reward  exceeds  measure,  and  the  end 
of  the  cause  of  reward  is  against  justice  ;  as  if  he  will 
take  a  reward  to  raze  a  record  etc.  And  Hobart  re- 
ports that  after  he  had  spoken.  Justice  Warburton 
said  that  he  began  to  stagger  in  his  opinion,  and  the 
plaintiff  had  judgment.^ 


"TXT^ORDS  spoken  of  an  attorney,  "  Thou  canst 
VV  not  read  a  declaration,"  per  quod  etc.  The 
court :  The  words  are  actionable,  though  there  had 
been  no  special  damage;  for  they  speak  him  to  be 
ignorant  in  his  profession,  and  we  shall  not  intend 
that  he  had  a  distemper  in  his  eyes  etc.  —  Judgment 
was  given  for  the  plaintiff.^ 


LET  the  following  case  be  a  warning  to  all  bad 
cooks.  Trim  8  Hen.  IV.  Eot.  47.  Willielmus 
Milburn  recuperat  per  juratam  per  billani  suam,  in 
qua  queritur  versus  Johannem  Cutting  Cook  de  eo 
quod    ipse    Johannes    apud  Westmonasterium  ven- 

1  Hobart,  8,  9.    1  Rolle  Ab.  53.  ^  Jones  v.  Powel,  1  Mod.  272. 


THE  LAW  REPORTERS.  103 

debat  clicto  Willielmo  imiim  caponem  pistum  cor- 
ruptibilem  et  recalefactuni,  qui  capo  assatns  per 
quatuor  dies  in  Hospicio  Domini  Eegis  et  iterum 
calefactus  et  pistus  extitit,  de  quo  postquain  edit 
vomitiim  horribilem  fecit,  ita  quod  infimiabatur  per 
duas  septimanas,  recuperat  inquain  vigiuti  solidos  per 
damnis.  And  Eolle  says  he  was  informed  that  it 
appears  upon  the  record  at  large  that  the  justices  in- 
creased the  damages.^ 


A  woman  shook  a  sword  in  a  cutler's  shop  against 
the  plaintiff,  being  on  the  other  side  of  the 
street ;  and  in  trespass  for  assault  and  battery,  there 
was  a  verdict  of  the  assault,  and  not  guilty  of  the 
battery.  It  was  prayed  to  give  no  more  costs  than 
damages,  and  so  granted  ;  which  was  a  noble.^ 


AN  infant  l)rought  an  action  of  trespass  by  her 
guardian  ;  the  defendant  pleads  that  the  plain- 
tiff was  above  sixteen  years  old,  and  agreed  for  six- 
pence in  hand  paid,  that  the  defendant  have  license 
to  take  two  ounces  of  her  hair ;  to  which  the  plain- 
tiff demurred,  and  adjudged  for  her,  for  an  infant 
cannot  license,  though  she  may  agree  with  the  barber 
to  be  trimmed.^ 

1  1  Rolle  Ab.  89.  2  Smith  v  Newsam,  3  Keble,  283. 

3  Scrnggam  v.  Stewardson,  3  Kcble,  369. 


104  CURIOSITIES   OF 

Avery  curious  document  has  been  issued  from 
the  Parliamentary  printing-office.  It  is  tlie 
bill  which  has  passed  the  Commons,  entitled  "An 
Act  to  repeal  certain  statutes,  which  are  sleeping  and 
not  in  use,"  and  it  is  made  singular  by  the  fact  that 
in  it  are  recapitulated  numerous  samples  of  ancestral 
wisdom.  One  of  the  statutes  provides  "  that  no  man 
shall  ride  in  harness  within  the  realm  nor  with 
launcegays."  Another  says,  "  the  rates  of  laborers' 
wages  shall  be  assessed  and  proclaimed  by  the  justices 
of  the  peace,  and  they  shall  assess  the  gains  of 
victuallers,  who  shall  make  horse-bread,  and  the 
weight  and  price  thereof."  A  third  defines  "  what 
sort  of  Irishmen  only  may  come  to  dwell  in  Eng- 
land "  (this  has  been  sleeping  a  very  long  time) ;  and 
a  fourth  is  framed  to  prevent  a  butcher  from  slaying 
any  manner  of  beasts  within  the  walls  of  London, 

vy 

IN  the  Statutes  at  Large  some  funny  things  may 
be  found.  There  is  one  which  is  not  to  be 
brought  to  book,  and  must  be  given  as  a  tradition  of 
the  time  when  George  III.  was  king.  Its  tenor  is, 
that  a  bill  which  proposed,  as  a  punishment  of  an 
offence,  to  levy  a  certain  pecuniary  penalty,  one  half 
thereof  to  go  to  his  Majesty  and  the  other  half  to 
the  informer,  was  altered  in  committee,  in  so  far  that, 
when  it  appeared  in  the  form  of  an  act,  the  punish- 
ment was  changed  to  whipping  and  imprisonment, 
the  destination  beimz  left  unaltered. 


THE  LAW  REPORTERS.  ]05 

It  is  wonderful  that  such  mistakes  are  not  of 
frequent  occurrence  when  one  remembers  the  hot, 
hasty  work  often  done  by  committees,  and  the  com- 
plete entanglements  of  sentences  on  Avhich  they  have 
to  work.  Bentham  was  at  the  trouble  of  counting 
the  words  in  one  sentence  of  an  Act  of  Parliament, 
and  found  that,  beginning  with  "  Whereas  "  and  end- 
ing with  the  word  "  repealed,"  it  was  precisely  the 
length  of  an  ordinary  three-volume  novel. 


SIE  MATTHEW  HALE  did  not  extend  his 
supremacy  over  the  entire  See  of  the  Criminal 
Law  ;  and  therefore,  when  Lord  Campbell  writes  of 
his  History  of  the  Pleas  of  the  Crown,  that  it  is  a 
"  complete  digest  of  the  Criminal  Law  as  it  existed  in 
Sir  M.  Hale's  day,"  he  must  be  understood  as  express- 
ing, in  an  equitable  sense,  that  what  was  intended  to 
be  done  was  done.^ 

A  translator  of  Latin  law-maxims  translated 
"  messis  sequitur  semeutem,"  with  a  fine  sim- 
plicity, into  "  the  harvest  follows  the  seed-time  "  ;  and 
"actor  sequitur  forum  rei,"  he  made  "the  agent  must 
be  in  court  when  the  case  is  going  on."  Copies 
of  the  book  containing  these  gems  are  exceedingly 
rare,  some  malicious  person  having  put  the  author  up 
to  their  absurdity. 

1  Ruins  of  Time,  by  Amos,  p.  3. 


106  CURIOSITIES   OF 

IN  the  Court  of  Queen's  Bench,  the  name  of  Mr. 
Charles  Dickens  having  been  called,  Lord  Camp- 
bell said:  "The  name  of  the  illustrious  Charles 
Dickens  has  been  called  on  the  jury,  but  he  has  not 
answered.  If  his  great  Chancery  suit  had  been  still 
going  on,  I  certainly  would  have  excused  him ;  but, 
as  that  is  over,  he  might  have  done  us  the  honor  of 
attending  here,  that  he  might  have  seen  how  we  went 
on  at  common  law." 

IF  one  that  is  seised  in  fee  of  an  orchard  makes  a 
feoffment  of  it  to  J.  S.,  and  goes  into  the  orchard 
and  cuts  a  turf  or  a  twig,  and  delivers  it  in  the  name 
of  seisin  to  the  feoffee  over  a  wall  of  the  same 
orchard,  the  feoffee  then  being  on  other  land  not 
mentioned  in  the  feoffment,  this  is  a  void  livery.^ 
As  to  when  a  man  shall  give  and  take  by  his  own 
livery,  see  Perkins,  §  205. 


A  searcher  after  something  or  other,  running  his 
eye  down  the  index  of  a  law-book  through 
letter  B,  arrived  at  the  reference  "  Best  —  Mr.  Justice 
—  his  great  mind."  Desiring  to  be  better  acquainted 
with  the  particidars  of  this  assertion,  he  turned  to 
the  page  referred  to,  and  there  found,  to  his  entire 
satisfaction,  "  Mr.  Justice  Best  said  he  had  a  great 
mind  to  commit  the  witness  for  prevarication." 

1  2  Rolle  Ab.  6,  pi.  5. 


THE  LAW  REPORTERS.  1()7 

"  r  I  THOUGH  the  court  may  order  an  election  nunc 
-L  pro  tunc,"  said  Mr.  Justice  Maule,  "it  is 
beyond  the  power  of  the  courts,  or  of  an  Act  of  Par- 
liament to  recall  a  day  that  has  passed,  or  make  a 
thing  -sYhicli  has  happened  not  to  have  happened." 

Non  tamen  irritum 
Quodcunque  retro  est  efficiet.^ 

That,  according  to  the  writer,  is  beyond  the  power  of 
Omnipotence  itself.^ 

AN  innkeeper  recently  ajipeared  at  the  Borough 
Police  Court,  on  a  summons  which  charged 
him  with  having  his  house  open  before  one  o'clock 
on  19th  August,  that  being  "  the  Lord's  day."  It  was 
objected  by  the  counsel  who  appeared  for  the  de- 
fendant, that  the  term  "  Lord's  day  "  was  a  misnomer 
according  to  the  Act  of  Parliament,  which  specified 
"  Sunday  "  ;  and  the  objection  being  sustained  by  the 
magistrates,  the  case  was  dismissed. 


LORD  HOLT,  after  stating  that  if  a  man  is 
wrongfully  brought  into  a  jurisdiction  and  there 
lawfully  arrested,  he  ought  to  be  discharged,  lays 
down  the  broad  position,  that  "no  lawful  thing, 
founded  u])on  a  wrongful  act,  can  be  supported."^ 

1  Hor.  III.  Curm.  29  45. 

2  M;iyor  etc.  v.  Oswald.  .3  EI.  &  Bl.  670. 

3  Luttin  V.  Benin,  11  Mod.  50.     Quoted  in  Ilsley  v.  Nichols.  12  Pick, 
p.  275. 


108  CURIOSITIES   OF 

ME.  JUSTICE  WILLES,  to  illustrate  the  ab- 
surdity into  which  judges  would  inevitably 
fall,  unless  they  applied  the  rules  of  common  sense 
to  restrict  the  extent  of  liability  for  the  breach  of 
a  contract  of  the  class  then  under  consideration, 
observed :  "  Cases  of  this  kind  have  always  been 
found  to  be  very  difficult  to  deal  with,  beginning 
with  a  case  said  to  have  been  decided  about  two 
centuries  and  a  half  ago,  where  a  man  going  to  be 
married  to  an  heiress,  his  horse  having  cast  a  shoe  on 
the  journey,  employed  a  blacksmith  to  replace  it, 
who  did  the  work  so  unskilfully  that  the  horse  was 
lamed,  and,  the  rider  not  arriving  in  time,  the  lady 
married  another ;  and  the  blacksmith  was  held  liable 
for  the  loss  of  the  marriage."  ^ 


IIST  the  report  of  a  case  in  the  State  Trials,  is  this 
passage :  "  First  came  the  execution,  then  the  in- 
vestigation, and  last  of  all,  or  rather  not  at  all,  the 
accusation." 


THE  Irish  statute-book  opens  characteristically 
with  "An  Act  that  the  King's  officers  may 
travel  lij  sea  from  one  place  to  another  within  tJie 
land  of  Ireland." 

1  British  Columbia  Saw  Mill  Co.  v.  Nettleship,  Law  Rep.  3  C.  P. 
p.  508. 


THE  LAW  REPORTERS.  109 

IN  "  Hortensius,"  p.  259  note,  a  most  amusing  in- 
stance of  identification  of  counsel  with  client 
is  related.  It  occurred  in  the  case  of  a  counsel  for  a 
female  prisoner  who  was  convicted  on  a  capital  charge, 
and  on  her  being  asked  what  she  had  to  say  why- 
sentence  of  death  should  not  be  passed  upon  her,  he 
rose  and  said,  '•'  If  you  please,  ray  lord,  ive  are  with 
child."  He  was,  however,  wrong  in  point  of  law,  — 
for  pregnancy  cannot  be  taken  advantage  of  in  arrest 
of  judgment,  but  only  in  stay  of  execution. 

IiST  a  very  recent  case  in  Vermont,^  we  find  the 
gravity  of  the  discussion  relative  to  the  rights  of 
two  mill-owners  enlivened  by  a  quotation  from  Don 
Juan.  j\Ir.  Justice  Barrett,  in  delivering  tlie  judg- 
ment of  the  court,  quotes  this  line, — 

"  Saying  '  I  will  ne'er  consent,'  consented."  ^ 


IN  the  tenth  London  edition  of  Byles  on  Bills,  p. 
62,  we  find  a  case  cited  from  "  1  Massey's  Ameri- 
can Eeports."     The  case  is  reported  in  4  Mass.  45. 


"O 


XE  half  of  the  English  language,"  said  Baron 
Alderson,  "  is  interpreted  by  the  context."  ^ 

1  Kimball  v.  Ladd,  42  Vermont,  p.  756. 

2  •'  And  whispering  '  I  will  ne'er  consent,'  —  consented."    Canto  I.  St. 
117. 

3  9  Dowl.   P.  C.  245. 


110  CURIOSITIES   OF 

THE  first  case  in  wliich  tlie  name  of  Chief  Justice 
Shaw  appears  in  the  Reports  is  the  well-known 
case  of  Young  v.  Adams.^  The  amount  involved  was 
five  dollars.  The  case  was  this  :  A  note  was  payable 
in  foreign  bills.  The  promisor  paid  it,  and  the  note 
was  given  up ;  but  one  of  the  notes  given  in  payment 
was  a  counterfeit  bill.  The  payee  br-ought  his  action 
for  the  amount  of  the  counterfeit  note.  Mr.  Shaw, 
for  the  defendant  in  error,  put  his  defence  on  two 
grounds :  first,  that  an  action  for  money  had  and 
received  would  not  lie  ;  and  secondly,  —  the  ground 
on  which  he  principally  relied, —  that  where  there 
was  no  fraud  and  no  express  undertaking,  and  both 
the  parties  were  equally  innocent,  no  action  would 
lie.  The  case  was  decided  for  the  defendant  in  error, 
the  plaintiff  in  the  court  below. 


"TT7"HAT  old  Eastell  says  in  the  following  passage 
VV  is  strictly  true :  "  Tliis  book  entituled  a 
collection  of  entrees,  contayneth  the  forme  and  maner 
of  good  pleading,  which  is  a  great  part  of  the  cunning 
of  the  law  of  England,  as  the  Eight  worshij)full 
and  great  learned  man  Syr  Tliomas  Litleton,  knight, 
sometime  one  of  the  Justices  of  the  Common  place, 
in  his  tlurd  book  of  Tenures,  in  the  chapter  of  con- 
firmation, saith  to  his  sonne."^ 

1  6  Mass.  182,  A.  D.  1810. 

2  Rastell's  Entries,  written  in  1564. 


THE  LAW  REPORTERS.  HI 

IN  "  The  Merry  Wives  of  Windsor,"  Act  II.  Scene 
2,  where  Ford,  disguised,  tries  to  induce  Falstaff 
to  assist  him  iu  his  intrigue  witli  Mrs.  Ford,  and 
states  that  for  all  the  money  and  trouble  he  had  be- 
stowed upon  her  he  had  received  no  satisfaction,  nor 
promise  of  any  at  her  hands,  there  is  this  passage  :  — 

Falstaff.  Of  what  quality  was  your  love,  then  ? 
Ford.   Like  a  fair   house,  built  upon  another  ^an's  ground  ;  so 
tlutt  I  have  lost  my  edifice  bymiitaking  the  place  wliere  I  erected  it. 

In  1852,  by  a  decision  of  the  Supreme  Judicial  Court 
of  Massachusetts,  the  town  of  Sudbury  in  the  county 
of  Middlesex  lost  a  school-house  "  by  mistaking  the 
place  where  they  erected  it."  ^  The  princij)le  is 
technical,  and  one  of  great  antiquity.. 


AiST  assault  was  laid  twenty-one  different  ways  in 
an  indictment.  And  on  motion  to  strike  them 
out,  the  court  thought  the  clerks  in  the  Crown  office 
ought  only  to  draw  the  indictments,  and  then  the 
court  could  punish  them  for  the  vexation.  ^ 


IT  has  been  said  by  first-class  authority,  that  in  the 
opinion  in  the  case  of  Brattle  Square  Church 
V.  Grant,  ^  "  the  law  assumes  the  beauty  and  precision 
of  the  exact  sciences." 

1  First  Parish  in  Sudbury  v.  Jones,  8  Cush.  184. 

2  Rex  V  Pewtress,  2  Strange,  1026.  8  3  Gray,  142. 


112  CURIOSITIES   OF 

LITTLETON"  tlius  describes  the  villein  service  : 
Tenure  in  villenage  is  most  properly  when  a 
villein  lioldeth  of  his  lord,  to  whom  he  is  a  villein, 
certain  lands  or  tenements  according  to  the  custom  of 
the  mannor,  or  otherwise,  at  the  will  of  the  lord,  and 
to  do  his  lord  villein  service ;  as  to  carry  and  re-carry 
the  dung  of  his  lord  out  of  the  city,  or  out  of  his  lord's 
mannor,  unto  the  land  of  his  lord,  and  to  spread  the 
same  upon  the  land,  and  such  like.^ 


LOED  BACON'S  enunciation  of  the  maxim,  In 
jure  non  remota  causa,  sed  proxima  spectatur, 
as  an  example  of  a  clear  and  concise  statement  of  a 
legal  proposition  has  never  been  surpassed  :  "  It  were 
infinite  for  the  law  to  judge  the  causes  of  causes, 
and  their  impulsions  one  of  another  :  therefore  it  con- 
tenteth  itself  with  the  immediate  cause;  and  judg- 
eth  of  acts  by  that,  without  looking  to  any  further 
degree." 

w 

THE  obsequious  Parliament  of  Eichard  III.  passed, 
at  the  special  instance  of  that  famous  sovereign, 
a  number  of  private  Acts,  one  of  which  was  "  to 
prove  the  King  to  be  true  and  undoubted  heir  to  the 
Crown,  and  to  make  his  brother's  children  bastards  " ; 
and  the  bulk  of  these  enactments  was  quite  in  ac- 
cordance with  this  sample. 

1  Tenures,  Lib.  II.  §  172. 


THE  LAW  REPORTERS.  113 

ME.  JUSTICE  CAEPt  thus  concludes  his  judg- 
ment in  Watkins  v.  Crouch  : ^  "It  will  be  ob- 
served that  I  have  cited  no  cases  in  support  of  this 
opinion ;  not  that  I  liave  not  read,  and  considered, 
and  puzzled  myself  with  the  multitude  that  were 
commented  on  in  the  argument ;  but  because,  finding 
them  like  the  Swiss  troops,  fighting  on  both  sides,  I 
have  laid  them  aside  and  goiie  upon  what  seems  to 
be  the  true  spirit  of  the  law." 


THE  rule  of  pleading  by  which  a  plea  in  abatement 
is  required  to  give  the  plaintiff  a  better  writ  is 
lucidly  stated  in  Britton :  "  If  the  tenant  says  that 
he  does  not  hold  the  whole,  then  lie  ouglit  to  declare 
who  holds  the  residue.'  For  we  will  that  before  writs 
be  abated  for  a  fault  or  error,  the  tenants  inform  the 
plaintiffs  how  they  shall  purchase  good  writs."  ^ 


"  TN  examining  of  a  witness,  counsel  cannot 
J-  question  the  whole  life  of  tlie  witness,  as  that 
he  is  a  whoremaster  etc.  But  if  he  hath  done  such 
a  notorious  fact  whicli  is  a  just  exception  against  him, 
then  they  may  except  against  him.  That  was  Onbie's 
case  of  Gray's  Inn;  and  by  all  the  judges  it  was 
agreed  as  before."  ^ 

1  5  Leigli,  p.  530. 

2  Britton,  Liv.  III.  cli.  XXI.  Vol.  II.  p.  145,  ed.  Oxford,  1865. 

3  March,  pi.  130. 

H 


114  CURIOSITIES   OF 

LOED  COKE'S  commentary  on  Twyne's  Case 
sinks  into  utter  insignificance  in  comparison 
with  the  following  passage  addressed  to  the  Supreme 
Court  of  the  United  States,  in  solemn  argument : 
"  Fraud  vitiates  everything  into  which  it  enters.  It 
is  like  the  deadly  and  noxious  simoom  of  arid  and 
desert  climes.  It  prostrates  all  before  its  contami- 
nating touch,  and  leaves  death  only  and  destruction  in 
its  train.  No  act  however  solemn,  no  agreement 
however  sacred,  can  resist  its  all-destroying  power."  ^ 


THE  government  cannot  be  carried  on  without 
officers  ;  therefore  a  refusal,  without  lawful  ex- 
cuse, to  accept  of  a  public  office  to  which  a  person 
has  been  duly  elected,  is  indictable.  "  Happily  there 
is  in  this  country,"  observes  Mr.  Bishop,  "  widely 
diffused,  a  commendable  willingness  to  do  this  duty  ; 
therefore  indictments  for  tlie  breach  of  it  are  rare."  ^ 


"     A    NTIQUITY   of  time   fortifies   all   titles,   and 
-^^^  supposeth  the  best  beginning  the  law  can  give 
tliem."  ^ 

1  Commerci.il  Bank  of  JLinchester  v.  Buckner,  20  Howard,  p.  109. 

2  1  Conim   oil  Crim.  Law,  §  912  . 

3  Lord  Hobart,  in  Slade  v.  Drake,  Hobart,  295.  Quoted  in  the  con- 
.sidered  judgment  in  Ellis  v.  Mayor  etc.  of  Bridgnorth,  15  C.  B.  N.  S. 
p.  77. 


THE  LAW  REPORTERS.  115 

IN  striking  contrast  with  the  inflated  eulogies  pre- 
fixed to  the  posthumous  editions  of  some  of  the 
old  reporters  is  the  preface  to  Durnford  and  East, 
par  excellence  the  "Term  Eeports " :  "In  a  work 
of  this  kind  all  that  can  be  expected  is  accuracy ;  to 
polish  and  digest  properly  requires  long  time  and 
much  labour."  For  care  and  accuracy  of  finish,  and 
a  matchless  propriety  of  style,  which  they  every- 
where maintain,  these  reporters  have  never  been 
surpassed. 

"  A  LMOST  all  who  sign  as  surety,"  says  Chief 
-lS^  Justice  Appleton,  "  have  occasion  to  remem- 
ber the  proverb  of  Solomon  :  '  He  that  is  surety  for  a 
stranger  shall  smart  for  it,  and  he  that  hateth  surety- 
ship is  sure.'  But  they  are  nevertheless  held  liable 
upon  their  contracts,  otherwise  there  would  be  no 
smarting,  and  the  proverb  would  fail."  ^ 


""T"  take  the  law  to  be,"  said  Mr.  Justice  Blackburn, 
-L  "  that  you  must  not  injure  the  property  of  your 
neighbour,  and  consequently,  if  filth  is  created  on 
any  man's  land,  then  in  the  quaint  language  of  the 
report  in  Salkeld,^  '  he  whose  dirt  it  is  must  keep  it 
that  it  may  not  trespass.'  "  ^ 

1  ]Mayo  V.  Hutchinson,  57  Maine,  p.  547. 

2  Tenant  v.  Goldwin,  Salk.  p.  361. 

8  Hodgkinson  v.  Ennor,  4  Best  &  Smith,  p.  241. 


116  CURIOSITIES   OF 

BELLEWE,  in  the  preface  to  his  Eeports,  quaintly 
says  to  the  reader :  "  Beseeching  you  tliat 
where  you  shall  find  any  faults,  which  either  by  my 
insufficiency,  the  intricateness  of  the  work,  or  the 
Printer's  recldessness,  are  committed,  either  friendly 
to  pardon,  or  by  some  means  to  admonish  me  thereof." 


IIS]"  the  time  of  that  great  Admiralty  judge.  Lord 
Stowell,  such  was  the  paucity  of  legal  business, 
tliat  he  objected  at  first  to  Eeports  of  the  proceedings, 
"  lea  ring  lest  the  Eeport  should  expose  the  nakedness 
of  the  land."  ^ 


IN"  Phillimore's  Ecclesiastical  Eeports  is  this  case : 
In  a  libel  for  divorce,  the  allegation  was,  that  the 
male  member  was  soft  and  short,  but  the  court  said, 
this  did  not  always  continue.^ 


AN"  old  English  statute  commenced  by  an  enact- 
ment relating  to  the  admission  of  attorneys, 
and  finished  by  prohibiting  the  importation  of  horned 
cattle. 

1  Coote  New   Practice  of  the   Court  of   Admiralty,   Preface,  p.  v, 
1st  ed. 

2  Grimbaldifston  v.  Anderson,  cited  in  Norton  v.  Seton,  3  Pliillimore, 
p.  155.     1  Bishop  on  Marriage  and  Divorce,  §  585. 


THE  LAW  REPORTERS.  II7 

THE  following  case,  says  an  able  writer,  as  relat- 
ing to  the  official  conduct  of  one  of  the  greatest 
judges  that  ever  sat  on  the  King's  Bench,  cannot  fail 
to  give  rise,  in  the  mind  of  the  discerning  reader,  to 
many  interesting  reflections. 

In  the  month  of  November  1768,  a  w^oman  having 
appeared  before  two  of  his  Majesty's  justices  of  the 
peace  to  swear  a  child  against  the  secretary  to  Count 
Bruhl,  the  Saxon  minister,  the  Count  interfered,  and 
the  justices  were  afraid  to  proceed.  The  woman 
applied  to  Sir  Fletcher  Norton,  who  advised  that  a 
motion  should  be  made,  in  the  Court  of  King's  Bench, 
for  a  peremptory  mandamus  to  the  justices  to  proceed 
in  that  filiation.  The  motion  was  accordingly  made 
by  Mr.  Mansfield. 

The  Lord  Chief  Justice  Mansfield  received  it  with 
marks  of  anger  and  surprise  ;  he  said  he  did  not  un- 
derstand what  was  meant  by  such  collusive  motions, 
nnless  it  was  to  draw  from  that  court  an  opinion  upon 
the  privileges  of  foreign  ministers,  which  they  had 
no  riglit  to  meddle  with  ;  that  the  motion  was  abso- 
lutely improper;  that  he  wondered  who  advised  it, 
and  that  he  certainly  should  not  grant  the  mandamus. 

Sir  Fletcher  Norton  then  got  up,  and  said  that  the 
party  was  his  client ;  that  his  Majesty's  subjects, 
when  injured,  had  a  right  to  redress  somewhere  or 
other ;  and  tliat  lie  knew  of  no  place  where  such 
redress  could  be  legally  applied  for  or  obtained,  but 
in  the  Court  of  King's  Bench  ;  that  therefore  he  had 
advised  the  motion. 


118  CURIOSITIES   OF 

Lord  Mansfield,  upon  this,  began  to  flonrisli,  in  liis 
nsual  style,  upon  the  sacred  privileges  of  ambassadors, 
the  law  of  nations  etc.  etc.,  repeated  something 
about  collusive  motions,  and  took  notice  that  the 
application  for  redress  ought  regularly  to  have  been 
made  to  Count  Bruhl,  or  to  his  ]\Iajesty's  attorney- 
general. 

Mr.  Justice  Aston  said,  deliberately,  that  he  agreed 
entirely  with  the  Lord  Chief  Justice,  and  that  the 
motion  ought  not  to  be  granted. 

Sir  Fletcher  Norton  then  said  that  after  he  had 
declared  liimsclf  the  adviser  of  the  motion,  he  did 
, not  expect  to  have  heard  it  again  called  collusive; 
that  he  despised  and  abhorred  all  ideas  of  collusion 
as  much  as  any  man  in  that  court ;  that  it  was  the 
first  time,  and  he  hoped  it  would  be  the  last,  that  he 
should  hear  the  Court  of  King's  Bench  refer  an 
injured  subject  of  England  to  ?i  foreign  minister  or  to 
an  attorney -general  for  redress ;  that  the  laws  of  this 
country  liad  not  left  his  Majesty's  subjects,  complain- 
ing of  injury,  without  a  legal  and  certain  protection  ; 
that  their  claim  was  a  claim  of  right,  upon  Avhich  the 
Court  of  King's  Bench  had  full  authority  to  inquire, 
and  mnst  determine;  that  if  his  clients  were  injured, 
he  should  always  bring  them  to  that  court  for  redress, 
let  who  would  have  committed  the  injury,  and  he 
would  take  care  that  that  court  should  do  tliem 
justice ;  that  his  motion  was  proper  and  should  not 
be  withdrawn. 


THE  LAW  REPORTERS.  119 

Judge  Yates  then  said  that  the  reasons  offered  by 
Sh'  Fletcher  Norton  had  clearly  convinced  him ;  that 
he  had  not  the  least  doubt  of  the  authority  of  the 
court  to  protect  his  Majesty's  subjects ;  and  that,  for 
his  part,  he  should  never  refer  them  either  to  a 
foreign  minister  or  to  an  officer  of  the  Crown ;  that 
he  thought  the  motion  perfectly  regular,  and  that  it 
ought  to  be  granted. 

Judge  Aston  then  began  to  recant.  He  said  that 
he  was  always  glad  to  be  convinced  of  a  mistake,  and 
happy  in  having  an  early  opportunity  of  acknowledg- 
ing it ;  that,  from  what  his  brother  Yates  and  Sir 
Fletcher  Norton  had  said,  he  saw  clearly  that  his 
first  opinion  had  been  erroneous,  and  that  he  agreed 
the  motion  ought  to  be  granted. 

Lord  jSIansfield  then,  in  great  confusion,  said  that 
he  should  take  time  to  consider  of  it.  To  this  Sir 
Fletcher  Norton  replied,  that,  as  two  of  the  three 
judges  were  of  the  same  opinion,  the  motion  must  be 
granted ;  but  that,  for  his  part,  if  his  lordship  wanted 
any  time  to  consider  wliether,  when  a  subject  applied 
to  the  Court  of  King's  Bench  for  redress,  he  was  or 
was  not  to  be  referred  to  a  foreign  minister  or  to  an 
attorney-general,  he  had  no  objection  to  allowing  him 
all  the  time  he  wanted. 


"  rr^HE  sparks  of  all  sciences  in  the  world,"  said 
-L    Sir  Henry  Finch,  "  are  taken  up  in  the  ashes 
of  the  law." 


120  CURIOSITIES   OF 

IN  considering  presumptions  which  tend  to  estab- 
lish the  offence  of  adultery,  regard  is  had  to  the 
peculiar  modes  of  life  of  the  parties,  and  the  habits 
of  the  community  wherein  they  dwell.  Thus  where 
the  parties  are  near  of  kin,  or  sustain  the  relation  of 
physician  and  patient,  a  carnal  intercourse  will  be  less 
readily  inferred ;  and,  according  to  the  old  canonists, 
if  a  clergyman  is  found  embracing  a  woman  in  some 
secret  place  this  does  not,  as  in  the  case  of  other 
people,  prove  adultery,  for  "  he  is  not  presumed  to  do 
it  on  the  account  of  adultery,  but  rather  on  the  score  of 
giving  his  benediction,  or  exhorting  her  to  penance,"  ^ 
—  "a  good  illustration  of  the  principle,"  observes  Mr. 
Bishop,  "  though  few  judges  in  modern  times  would 
yield  so  much  to  clerical  virtue  as  this  application  of 
the  principle  implies."  ^ 

IN  the  Year-Book,  22  Edw.  IV.  20,  is  a  case  to  this 
effect :  "  The  Abbot  of  St.  Albans  sent  his  servant 
to  a  feme  covert  to  come  to  his  master  and  speak  with 
him.  The  servant  performed  his  command,  and  there- 
upon the  woman  came  with  him  to  the  Abbot ;  and 
when  the  Abbot  and  the  woman  were  together,  the 
servant  (who  knew  his  master's  will)  withdrew  from 
them,  and  left  tliem  two  in  the  chamber  alone ;  and 
then  the  Abbot  said  to  the  woman  that  her  apparel 
was  gross  apparel ;  to  whom  the  w^oman  said  that  her 

1  Ayliffe  Parergoii,  51. 

2  Bishop  on  Marriage  and  Divorce,  Vol.  II.  §  631. 


THE  LAW  REPORTERS.  121 

apparel  was  according  to  her  ability,  and  according  to 
the  ability  of  her  husband:  the  Abbot  (knowing  in 
what  women  repose  delight)  said  to  her,  that  if  she 
would  be  ruled  by  him,  she  should  have  as  good  ap- 
parel as  any  woman  in  the  parish,  and  solicited  her 
chastity  :  ^^'hen  the  woman  would  not  consent  to  him, 
the  Abbot  assaulted  her,  and  would  have  made  her 
an  ill  woman  against  her  will,  which  she  would  not 
suffer  ;  whereupon  the  Abbot  kept  her  in  his  chamber 
against  her  will,  and  to  the  intent  etc.  The  husband, 
having  notice  of  this  abuse  to  his  wife,  spoke  of  all 
this  matter,  and  said  that  he  would  have  his  action 
of  false  imprisonment  against  the  Abbot,  for  that  he 
had  imprisoned  his  wife  :  whereupon  the  Abbot  (add- 
ing one  sin  to  another)  sued  the  innocent  and  poor 
husband  for  defamation  in  the  Spiritual  Court,  because 
the  husband  had  published  that  the  Lord  Abbot  had 
solicited  his  wife's  chastity,  and  would  have  made  her 
an  ill  woman :  but  upon  all  this  matter  disclosed  to 
the  court,  the  husband  had  a  prohibition,  because  the 
husband  might  have  an  action  at  the  common  law  for 
this  assault  and  imprisonment  of  his  wife,  although 
he  then  had  no  action,  nor  perhaps  never  would ;  yet 
because  the  scandal  determinable  in  the  Ecclesiastical 
Court  was  upon  the  matter  disclosed,  mixed  with 
matter  determinable  at  the  common  law,  for  this 
cause,  upon  a  motion  made  by  the  Abbot's  counsel  to 
have  a  '  consultation '  in  that  case^  it  was  denied  by 
the  court." 

6 


122  CURIOSITIES    OF 

LOED  CHANCELLOE  THUELOW  held,  upon 
the  construction  of  the  Statute  of  Frauds,  which 
requires  tliat  a  will  of  lands  shall  be  subscribed  by 
the  witnesses  in  the  frcsence  of  the  testator,  that  a 
will  was  well  executed  where  a  lady  who  made  it, 
having  signed  it  in  an  attorney's  office,  got  into  her 
carriage,  and  the  carriage  was  accidentally  backed  by 
the  coachman  opposite  to  the  window  of  the  office, 
so  that,  if  she  had  been  inclined,  she  might  have  let 
down  the  glass  of  the  carriage  and  seen  the  witnesses 
subscribe  the  will.^ 


IN"  Forsyth's  "  Constitutional  Law,"  p.  246  note,  a 
case  is  related  of  a  lady  of  rank  who,  being 
pressed  by  her  creditors,  married  a  convict  in  prison 
under  sentence  of  transportation  ;  and,  having  become 
a  married  woman,  she  was  released  from  her  debts 
and  from  liability  to  arrest.  She  took  care,  however, 
not  to  follow  her  husband  to  a  penal  settlement. 


A  WOMAN  of  full  age  contracted  matrimony 
with  a  lad  of  twelve  years,  and  solemnized  it 
in  the  face  of  the  church,  and  in  some  way  consum- 
mated it,  tlie  man  Ijeiiig  put  into  the  bed  with  her ; 
and  he  died  before  the  age  of  consent.  In  a  cause  of 
dower  tliis  is  true  matrimony.^ 

1  Cassoii  V.  Dade,  1  Brown  C.  C.  99.     Dickens,  586. 

2  Dyer,  3C9  a.  pi.  48,  49. 


THE  LAW  REPORTERS.  123 

THE  indictment  against  John  Bunyan  ran  thus : 
"  John  Bunyan  hath  devilislily  and  perniciously 
abstained  from  coming  to  church  to  hear  Divine 
service,  and  is  a  common  upholder  of  several  un- 
lawful meetings  and  conventicles,  to  the  disturbance 
and  distraction  of  the  good  subjects  of  this  kingdom, 
contrary  to  the  laws  of  our  sovereign  lord  the  King." 
He  was  convicted  and  imprisoned  twelve  years  and 
six  months. 

?(\ 

IN  the  course  of  the  argument  in  Lincoln  v.  Wright,^ 
Lord  Langdale  observed:  "All  interrogatories 
must,  to  some  extent,  make  a  suggestion  to  the 
witness.  It  would  be  perfectly  nugatory  to  ask  a 
witness  if  he  knew  anything  about  something." 

1  4  Beavan,  p.  171.  With  regard  to  leading  questions  it  would  be  use- 
ful for  the  objector  to  remember  the  remark  of  Lord  Ellenborough :  "I 
wish  that  objections  to  questions  as  leading  might  be  a  little  better  con- 
sidered before  they  are  made.  It  is  necessary  to  a  certain  extent  to  lead 
the  mind  of  tne  w  itness  to  the  subject  of  the  inquiry.  If  questions  are 
asked  to  which  the  answer  yes  or  no  would  be  conclusive,  they  would 
certainly  be  objectionable;  but,  in  general,  no  objections  are  more 
frivolous."     NichoUs  v.  Dowding,  1  Starkie  N.  P.  C.  81. 

In  this  connection  the  following  anecdote  is  worthy  of  transcription: 
Serjeant  Davy  was  often  employed  at  the  bar  of  the  House  of  Commons. 
On  one  occasion  he  called  a  witness  to  prove  some  point,  and  put  a 
question  of  no  great  importance  which  was  immediately  objected  to  by 
the  opposite  counsel.  The  counsel  on  both  sides,  according  to  the  usual 
form,  were  ordered  to  withdraw,  and  the  House  began  to  debate  on  the 
propriety  of  the  question.  The  discussion  lasted  for  some  hours;  but  at 
length  the  determination  being  in  favor  of  Davy,  he  was  called  in,  and 
the  Speaker  informed  him  he  might  put  the  question.  "  I  protest,  Mr. 
Speaker,"  replied  Davy,  ''  I  entirely  f<n-get  what  it  was."  This,  as  may 
easily  be  believed,  threw  the  House  into  a  roar  of  laughter. 


124  CURIOSITIES   OF 

FOEMEELY  if  a  bill  was  brought  into  Parlia- 
ment at  the  close  of  the  session,  and  passed  on 
the  last  day,  which  made  an  act  previously  innocent 
criminal,  and  even  capital,  and  if  no  day  was  fixed 
for  the  commencement  of  its  operation,  it  was  con- 
sidered to  have  been  passed  on  the  first  day  of  the 
session ;  and  the  consequence  was,  that  all  who  had 
in  the  mean  time  been  doing  w-hat  at  the  time  was 
perfectly  legal  were  liable  to  suffer  the  punishment 
created  by  statute.^ 

?1\ 

"  A  BILL  of  exception,"  says  Clayton,  "  is  to  pre- 
-^lA_  vent  the  precipitancy  of  the  judge,  and  ought 
to  be  allowed  in  all  courts  and  in  all  parts  of  the 
pleading,  and  may  be  put  in  any  time  before  the  jury 
have  given  their  verdict.  Quod  nota."^  The  further 
proceeding  provided  by  statute  in  Massachusetts  "  to 
prevent  the  precij^itancy  of  the  judge  "  by  settling  the 
truth  of  exceptions  ^\'hen  he  disallows  or  alters  the 
same,  was  probably  unknown  in  Clayton's  time. 


CLAYTON  reports  that  a  challenge  to  a  jury 
was  directed  by  the  court  to  commence  in  this 
form  :  "  May  it  please  you,  Mr.  Justice  Barkley  "  etc. 
And  he  calls  attention  to  "the  modesty  of  the  judge 
at  this  time,  not  to  direct  to  say,  '  May  it  please  your 
Lordship.' " 
1  Latless  v.  Holmes,  4  T.  K.  660.  2  Clayton,  158. 


THE  LAW  REPORTERS.  125 

"  "TN  an  action  of  assumpsit  for  money  due,  the 
-i-  plaintiff  laid  it  in  his  declaration  to  be  payable 
upon  request :  and  by  his  witness  it  did  appear  that 
a  fortnight's  time  was  given  for  the  payment  of  it,  and 
though  this  fortnight's  time  was  given  for  the  pay- 
ment of  it,  and  though  this  fortnight's  time  was  past 
long  before  this  action  was  brought,  yet  now  it  was 
held  a  failure  in  the  proof  of  the  plaintiff  of  his  case 
as  he  had  laid  it."  ^  The  case  of  Stanwoad  t\  Scovel, 
4  Pick.  422,  is  similar  both  in  facts  and  decision. 


THE  best  definition  of  an  indictment  which  the 
author  has  ever  seen  is  that  contained  in  the 
joint  opinion  of  Lord  Denman,  at  the  time  Attorney- 
General,  and  Sir  William  Home,  Solicitor-General : 
"  The  first  principles  of  law  require  that  the  charge 
should  be  so  preferred  as  to  enable  the  court  to  see 
that  the  facts  amount  to  a  violation  of  the  law,  and 
the  prisoner  to  understand  what  facts  he  is  to  answer 
or  disprove."  ^ 


THE  advice  given  by  Lord  Coke  in  his  com- 
mentary upon  Twyne's  case  in  regard  to  "  any 
gift  of  goods  and  chattels  made  in  satisfaction  of  a 
debt "  remains  as  good  as  ever,  namely,  "  immediately 
after  the  gift  take  possession  of  them." 

1  Clayton,  115. 

■■2  Forsyth  Constitutional  Law,  p.  458. 


126  .  CURIOSITIES  OF 

THE  style  of  some  of  the  old  reporters  is  ad- 
mirable. Clayton  reports  this  case  :  "  Trespass. 
Plaintiff  declares  that  the  defendant  did  break  his 
close  and  eat  his  grass  etc.  cum  averiis  siiis,  to  wit, 
oxen,  sheep,  hogs,  avibus,  angiice  tiirkies.  And  the 
judge  did  hold  that  turkies  are  not  comprised  within 
the  general  word  '  averia,'  which  is  an  old  law  word, 
and  these  fowls  came  but  lately  into  England  i^  and 
upon  this  it  was  directed  to  sever  the  damages,  for 
otherwise  if  the  damages  shall  be  joyntly  given,  and 
it  be  ill  for  this  of  the  turkies,  for  the  reason  above- 
said,  it  will  overthrow  all  the  verdict."  ^ 


IN  a  recent  case  in  Pennsylvania,^  Mr.  Justice 
Lewis  thus  discourses  of  a  condition  in  a  will  in 
restraint  of  marriage  :  "  Tlie  principle  of  reproduction 
stands  next  in  importance  to  its  elder-born  correlative 
seK-preservation,  and  is  equally  a  fundamental  law 
of  existence.  It  is  the  blessing  which  tempered  with 
mercy  the  justice  of  expulsion  from  Paradise.  -It 
was  impressed  upon  the  human  creation  by  a  benefi- 
cent Providence,  to  multiply  the  images  of  himself, 
and  thus  to  promote  his  own  glory  and  the  happiness 
of  his  creatures.  Not  man  alone,  but  the  whole 
animal  and  vegetable  kingdom  are  uuder  an  imperious 

1  Clayton's  Tieports  wei-e  published  in  1651. 

2  Usley's  Case,  p.  50. 

3  Commonwealth  v.  StauflTer,  10  Penn.  State  Eep.  355. 


THE  LAW  REPORTERS.  127 

necessity  to  obey  its  mandates.  From  tlie  lord  of 
tlie  forest  to  the  monster  of  the  deep,  from  the 
subtlety  of  the  serpent  to  the  innocence  of  the  dove, 
from  the  celastic  embrace  of  the  mountain  kalmia  to 
the  descending  fructification  of  the  lily  of  the  plain, 
all  Nature  bows  submissively  to  this  primeval  law. 
Even  the  flowers  which  perfume  the  air  with  their 
fragrance,  and  decorate  the  forests  and  fields  with 
their  hues,  are  but  '  curtains  to  the  nuptial  bed.'  Tlie 
principles  of  morality,  the  policy  of  the  nation, 
the  doctrines  of  the  common  law,  the  law  of  nature 
and  the  law  of  God,  unite  in  condemning  as  void 
the  condition  attempted  to  be  imposed  upon  his 
widow." 

ME.  EICHAED  WEST,  afterwards  Lord  Chan- 
cellor of  Ireland,  gave  a  pithy  opinion  "  On 
the  Common  and  Statute  Law  applical)le  to  the 
Colonies,"  concluding,  "  Let  an  Englishman  go  wliere 
he  will,  he  carries  as  much  of  law  and  liberty  with 
him  as  the  nature  of  things  will  bear."  ^ 


IN"  some  copies  of  the  Second  Part  of  Brownlow's 
Eeports  there  is  a  peculiar  Preface,  in  others  it 
is  omitted  ;  the  reader  may  perhaps  think  it  might  as 
well  have  been  omitted  in  all. 

1  Forsyth  Constitutional  Law,  p.  1. 


128  CURIOSITIES  OF 

THE  common  law  contains  a  general  definition 
of  forgery  ;  but  the  statute  law  has  specified  so 
many  varieties  of  forgery  that  the  offence  at  common 
law  has  been  nearly  superseded.  Indeed,  it  would 
require  great  ingenuity  to  commit  it  without  com- 
mitting, at  the  same  time,  a  statutory  offence.  The 
problem  w^as  perhaps  solved  by  a  man  who  painted 
the  name  of  an  eminent  artist  in  the  corner  of  a 
picture,  in  imitation  of  the  original,  in  order  to  pass 
it  off  as  an  original  picture  by  that  artist.  A  case 
was  reserved  to  determine  whether  the  solution  was 
sound.  It  was  decided  that  he  was  not  guilty  of 
forgery.  1 

The  drawer  of  a  check  on  a  bank  which  was  duly 
honored  and  returned  to  him  by  the  bank,  afterwards 
altered  his  signature  in  order  to  give  it  the  appearance 
of  forgery,  and  to  defraud  the  bank  and  cause  the 
payee  of  the  check  to  be  charged  with  forgery.  The 
Court  of  Queen's  Bench  were  of  opinion  that  inas- 
much as  the  alteration  did  not  alter  the  legal  effect 
of  the  document  it  did  not  amount  to  a  forgery.^ 

PROFESSTONAL  law-books  are  not  generally 
esteemed  as  light  reading.  Menage  wrote  a 
book  on  the  amenities  of  the  Civil  Law,  which  does 
anything  but  fulfil  its  promise.^ 

1  Eegina  v.  Gloss,  Dearsly  &  Bell  C.  C.  460. 

2  Britian  v.  Bank  of  London,  11  W.  K.  569. 

8  Manage  (Gilles)  Juris  Civilis  Amoenitates.     Secunda  editio.  8vo. 
Paris.  1677. 


THE  LAW  REPORTERS.  129 

IN  theory,  the  law  looks  upon  the  "services  of 
counsel  as  rendered  gratuitously.^  In  practice, 
the  client  often  takes  the  same  view.  Combine  the 
two,  and  the  profits  arising  from  the  practice  of  the 
law  are  easily  computed.     Compare  Juvenal :  — 

Die  igitur,  quid  causidicis  civilia  prsestent 
Officia  et  magno  comites  in  fasce  libelli  ? 

Veram  deprendere  messem 

Si  libet :  liinc  centum  patrimonia  causidicorum, 
Parte  alia  solum  russati  pone  Lacernse. 

Sat.  VII.  106-114. 

Well,  tell  me  then,  what  do  the  services  rendered  their 
fellow-citizens,  and  their  briefs  they  carry  about  with 
them  in  a  big  bundle,  bring  in  to  the  lawyers  ?  .  .  .  . 
But  if  you  like  to  calculate  the  actual  harvest  they 
reap,  set  in  one  scale  the  estate  of  a  hundred  lawyers, 
and  you  may  balance  it  on  the  other  side  with  the 
single  fortune  of  Lacerna,  the  charioteer  of  the  Eed. 


A]\IAN  grants  all  trees  in  such  a  close,  excepting 
one  plump  of  oaks  being  eight  in  number,  and 
there  were  nine  of  them,  and  the  grantee  did  cut 
them  all  down,  and  that  plump  among  the  rest,  and 
liolden  the  exception  abovesaid  not  good  for  the 
variance,  but  all  did  pass.  ^ 

1  Kennedy  v.  Broun,  10  C.  B.  N.  S.  677.  Lord  Nottingham  held  it  to  be 
maintenance  in  a  barrister  to  contract  to  be  paid  in  the  event  of  success. 
Penrice  v.  Parker,  Cases  Temp.  Finch,  75. 

2  Clayton,  149. 

6*  I 


130  CURIOSITIES   OF 

IN  actions  for  slander  it  lias  been  at  all  times  the 
custom  to  preface  the  legal  enunciation  of  the 
plaintiff's  case  with  a  preliminary  panegyric  upon  his 
character  ;  this  is  superfluous^  since  it  does  not  affect 
the  gist  of  the  action.  In  one  instance,  indeed,  it 
ajDpears  that  in  an  action  for  calling  the  plaintiff  a 
common  whore,  the  announcing  herself  to  be  of  good 
fame  and  honest  reputation  tempted  the  defendant 
to  plead  that  at  the  time  of  publishing  the  words  she 
was  not  of  an  honest  reputation ;  but  the  plea  w^as 
held  to  be  bad,  since  it  answered  matter  of  induce- 
ment which  did  not  require  any  answer.^  In  a 
modern  case,  the  plaintiff  in  an  action  for  a  libel 
imputing  to  him  seditious  principles  prefaced  his 
declaration  with  a  boast  of  the  uniform  loyalty  of  his 
conduct ;  it  appeared  he  had  been  some  time  in  con- 
finement under  the  sentence  of  the  court,  for  publish- 
ing a  seditious  libel ;  Lord  Ellenborough  animad- 
verted on  the  impropriety  and  absurdity  of  such  a 
preamble.^ 

IT  was  held  to  be  slanderous  to  say  of  a  barrister 
that  he  could  not  make  a  lease  ;  whereas  it  was 
not  slanderous  to  say  of  an  attorney  that  he  made 
false  writings,  because  it  was  not  his  business  to  make 
writings.^ 

1  Strachy's  Case,  Style,  118. 

2  1  Starkie  on  Slander,  357,  2d  ed. 

8  1  Rolle  Ab.  54.     Bac.  Ab.  Slander,  B.  3. 


THE  LAW  REPORTERS.  131 

CLAYTON,  p.  34,  reports  this  case :  " The  jiKlge 
would  not  suffer  a  grand-juryman  to  be  pro- 
duced as  a  witness  to  swear  what  was  given  in 
evidence  to  them,  because  he  is  sworn  not  to  reveal 
the  secrets  of  his  companions.  See,  if  a  witness  is 
questioned  for  a  false  oath  to  the  grand  jury,  how  it 
shall  be  proved  if  some  of  the  jury  be  not  sworn  in 
such  case;i  and  in  a  case  between  Hitch  and  Mallet 
such  a  case  was  about  an  oath  made  before  a  grand 
jury,  quaere  What  became  of  it  ?  " 


FOE  saying  to  the  plaintiff's  wife  these  words, 
"  You  had  a  bastard  in  London,  and  go  thither 
and  have  another,"  and  the  judge  held  the  action 
would  not  lie :  but  see  because  of  the  variance  which 
may  be  in  such  case  between  the  husband  and  his 
wife,  which  is  damage  etc.^ 


AN  attorney  cannot  act  on  both  sides,  even  with 
the  consent  of  the  parties.^  The  court  com- 
mitted an  attorney  to  the  Fleet,  and  struck  him  off 
the  roll,  for  accepting  a  retainer  on  both  sides  * 

1  "Some  of  the  jury"  shall  be"  sworn  in  such  case."     Common- 
wealth V.  Mead,  12  Gray,  167. 

2  Clayton,  73. 

8  Anon.  7  .Mod.  47. 

4  Simon  Mason's  Case,  Freeman,  74. 


132  CURIOSITIES  OF 

IN  Hilton  V.  Eckersley,^  the  sole  point  was  one 
purely  of  political  economy,  arising  out  of  the 
Combination  Laws.  Some  Lancashire  mill-owners 
entered  into  a  counter-combination  against  their  men 
(who  had  combined  to  force  their  masters  to  yield  to 
certain  terms)  not  to  open  their  mills  for  twelve 
months  except  on  terms  agreed  to  by  the  majority 
of  such  mill-owners.  Whether  this  agreement  of  the 
masters  was  valid,  was  the  subject  of  elaborate  dis- 
cussions in  the  Court  of  Queen's  Bench,  and  the 
Court  of  Error.  "I  enter  on  such  considerations," 
said  Lord  Campbell  in  delivering  his  judgment,  "with 
much  reluctance  and  apprehension,  when  I  think  how 
different  generations  of  judges,  and  different  judges 
of  the  same  generation,  have  differed  in  opinion  on 
questions  of  political  economy,  and  other  topics  con- 
nected with  the  adjudication  of  such  cases."  The 
court  held  the  agreement  void,  as  contrary  to  public 
policy,  in  restraint  of  trade,  and  the  free  action  of 
individuals ;  and  the  judgment  was  confirmed  unani- 
mously by  a  Court  of  Error.  Compare  this  decision, 
says  a  very  recent  writer,  and  the  enlightened  princi- 
ples on  which  the  discussion  was  conducted,  with  the 
state  of  things  existing  formerly  in  the  Legislature 
and  on  the  Bench,  as  evidenced  by  the  following 
passage  in  Lord  Coke's  Third  Institute.  Speaking  of 
such  "  new  manufacture  as  deserves  a  privilege,"  he 
proceeds :  "  There  was  a  new  invention  found  out  here- 

1  6  El.  &  Bl.  47.  24  L.  J.  N  S.  Q.  B.  352.  25  L.  J.  N.  S.  Q.  B.  199. 


THE  LAW  REPORTERS.  I33 

tofore,  that  bonnets  and  caps  miglit  be  thickened  in  a 
fulling-mill,  by  which  means  more  might  be  thickened 
and  fulled  in  one  day  than  by  the  labors  of  fourscore 
men,  who  got  their  livings  by  it :  It  was  ordained, 
that  bonnets  and  caps  should  he  thickened  and  fulled 
hy  the  strength  of  men,  and  not  in  a  fulling-mill :  for 
it  ivas  holdcn  inconvenient  to  turn  so  inang  Icdjoring 
men  to  idleness." 


LAW  CASES.  Special  and  Selected  Law  Cases, 
concerning  the  Persons  and  Estates  of  all  Men 
ivhatsoevcr ;  collected  out  of  the  Reports  and  Year- 
Books  of  the  Common  Law  of  England.  4to.  London : 
1641."  "The  title  of  this  book,"  writes  Mr.  Wallace, 
"  certainly  operates  by  way  of  enlargement!' 


THEEE  is  no  court  equal  to  the  trial  of  the  superior 
judges  of  the  realm  for  facts  done  in  judicature.^ 
If  judges  in  any  court,  said  Lord  Eobertson,^  were 
liable  to  be  called  to  an  account  for  words  spoken  in 
their  judicial  capacity,  it  may  be  said,  in  the  words 
of  Lord  Stair,  "  No  man  but  a  beggar  or  a  fool  would 
be  a  judge." 

1  Argument  for  the  defendant  in  error  in  Johnstone  v.  Sutton,  1  T   R. 
p  535.     See  Randall  v.  Brigham,  7  Wallace,  p.  535. 

2  Jliller  V.  Hope,  2  Shaw  Appeal  Cases,  p.  134. 


134  CURIOSITIES   OF 

"VTT'HEN  a  verdict  of  guilty  had  been  given  against 
VV  Lord  Stafford,  Lord  Chanceller  Nottingham, 
Lord  High  Steward,  proceeded  to  pass  sentence 
(according  to  the  expression  of  Evelyn,  who  was 
present)  "  with  greate  solemnity  and  dreadful  gravity." 
Lord  Stafford  then  begged  that  he  might  no  longer  be 
kept  a  close  prisoner  as  he  had  long  been,  and  that 
his  Avife  and  children  might  be  admitted  to  see  him 
nntil  his  death. 

Lord  High  Steward.  —  "  My  Lord  Stafford,  I  be- 
lieve I  may  with  my  Lords'  leave  tell  you  one  thing  far- 
ther, that  my  Lords,  as  they  proceed  with  rigour  of  jus- 
tice, so  they  proceed  with  all  the  mercy  and  compassion 
that  may  be  ;  and  therefore  my  Lords  will  be  humble 
suitors  to  the  King,  that  he  will  remit  all  punishment 
hut  the  taking  off  your  head."  ^ 


ME.  WALLACE  adverts  to  a  ludicrous  blunder 
of  Mr.  Justice  the  Honorable  St.  George 
Tucker,  of  the  Supreme  Court  of  Appeals  of  Vir- 
ginia, who  sets  aside  Lord  Hardwicke's  censure  of 
"  Reports  Tempore  Finch,"  and  supposes  that  Lord 
Nottingham  was  actually  the  author.^  "  This  book  has 
indeed,"  he  says,  "been  dishonored  as  one  of  no 
authority.  Whether  for  want  of  the  imprimatur  of 
the  Lord  Chancellor  and  Judges,  formerly  prefixed  to 

1  7  Howell  State  Trials,  1217-1558. 

2  The  Reporters  20,  3d  ed. 


THE  LAW  REPORTERS.  135 

books  of  Reports,  I  cannot  tell.  But  the  name  of 
Sir  Heneage  Finch,  the  author,  who  is  mentioned  by 
Judge  Blackstone  as  a  person  of  the  greatest  abilities 
and  most  uncorrupted  integrity,  endued  with  a  per- 
vading genius,  which  enabled  him  to  discover  and 
pursue  the  true  spirit  of  justice,  may  weigh  against 
the  opinion  even  of  Lord  Hardwicke,  especially  where 
this  book  is  cited  and  relied  on  by  other  Judges."  ^ 


THE  "  Eeports  Temp.  Finch  "  has  been  noted  for  a 
peculiarity,  namely,  that  in  all  cases  where  the 
rule  laid  down  or  relied  on  by  the  judge  differs  from 
the  corresponding  rule  of  the  Civil  Law,  the  differ- 
ence is  noted  in  the  margin. 


SIE  EGBERT  FILMEE  published  an  advertise- 
ment to  the  jurymen  of  England  touching 
witches.  In  this  he  shows  the  difference  between  a 
Hebrew  and  an  English  witch,  and  proves  that  the 
Devil  is  the  principal,  and  the  witch  only  an  accessory 
before  the  fact.  Now  an  accessory  cannot  be  con- 
victed before  the  principal  is  tried  or  outlawed  upon 
summons  for  nonappearance ;  he  could  not  be  tried 
by  his  peers,  who,  if  they  could,  would  never  convict 
him ;  and  by  the  rules  of  the  common  law  the  Devil 
could  never  be  summoned  nor  outlawed,  and  therefore 
a  witch  could  not  be  tried. 

1  Smith  V.  Chapman,  1  Hening  &  Munford,  293. 


136  CURIOSITIES   OF 

O'N  the  trial  of  Home  Tooke,  having  objected  to  a 
particular  piece  of  evidence,  he  was  reminded 
by  Chief  Justice  Eyre,  that,  if  there  were  two  or  tln^ee 
linlvS  in  the  chain,  they  must  go  to  one  first,  and  then 
to  another,  and  see  whether  they  amounted  to  evi- 
dence.    The  defendant  demurred  to  this. 

HoRNE  Tooke.  —  I  beg  your  pardon,  my  Lord,  but 
is  not  a  chain  composed  of  links,  and  may  I  not  disjoin 
each  link,  and  do  not  I  thereby  destroy  the  chain  ? 

Eyhe  C.  J.  —  I  rather  think  not,  till  the  links  are 
put  together,  and  form  the  chain. 

HoRXE  Tooke.  —  I  rather  think  I  may,  because 
it  is  my  business  to  prevent  the  forming  of  that 
chain  ! 

w     • 

'■IS 

IT  was  not  until  1695  that  a  statute  was  passed  in 
England,  which  provided,  among  other  things, 
that  any  person  on  trial  for  high  treason  "  shall  be 
received  and  admitted  to  make  his  full  defence  by 
counsel  learned  in  the  law."  The  first  instance  on 
record  in  which  we  find  counsel  assigned  under  this 
statute  is  on  the  trial  of  Rookwood  and  others,  on 
whicli  occasion  Sir  Bartholomew  Shower  and  Mr. 
Phipps  defended  the  prisoners ;  and  it  is  curious  to 
observe  in  what  deprecatory  terms  they  separated 
themselves  from  their  clients.  "  My  Lord,"  said  Sir 
Bartholomew,  addressing  Chief  Justice  Holt,  "  we  are 
assigned  of  counsel  in  pursuance  of  an  Act  of  Parlia- 
ment, and  we  hope  that  nothing  which  we  sliall  say 


THE  LAW  REPORTERS.  137 

in  defence  of  our  clients  shall  be  imputed  to  ourselves. 
I  thought  it  would  have  been  a  reflection  upon  the 
government  and  your  lordship's  justice,  if,  being 
assigned,  we  should  have  refused  to  appear :  it  would 
have  been  a  publication  to  the  world  that  we  dis- 
trusted your  candor  towards  us  in  our  future  prac- 
tice upon  other  occasions We  come  not  here 

to  countenance  the  practices  for  which  the  prisoners 
stand  accused,  nor  the  principles  upon  which  such 
practices  may  be  presumed  to  be  founded ;  for  we 
know  of  none,  either  religious  or  civil,  that  can  war- 
rant or  excuse  them."  ^  A  cold  exordium  for  the 
speech  of  an  advocate ! 


AN  imperative  rule  of  pleading  is  thus  tersely 
expressed :  "  An  indictment  ought  to  be  certain 
to  every  intent,  and  without  any  intendment  to  the 
contrary."  ^  The  charge  must  be  sufficiently  explicit 
to  support  itself ;  there  is  no  latitude  of  intention  to 
include  anything  more  than  is  charged.^ 


ME.  JUSTICE    MAULE  observed  that  a  man 
might  by  apt  words  bind  himself  that  it  shall 
rain  to-morrow  or  that  he  will  pay  damages.* 

1  13  Howell  State  Trials,  145.  2  Cro.  Eliz.  490. 

3  2  Burr.  1127. 

4  Canham  v.   Barry,  15  C.  B.  p.  619.     Quoted  in  the  judgment   in 
Baily  v.  Crespigny.  Law  Rep.  4  Q.  B.  p.  185,  and  10  Best  &  Smith,  p.  11. 


138  CURIOSITIES   OF 

"TXT^E  give  a  few  cases  decided  in  the  Star-Cham- 
V  V  ber.  They  are  probably  quite  as  vahiable 
as  a  vast  number  of  the  modern  decisions,  and  are 
certainly  shorter  and  more  entertaining.  This  court 
has  everywhere  of  late  times,  and  nowhere  more 
than  in  our  own  Eepublican  country,  been  the  subject 
of  unbounded  abuse.  Certainly  it  would  be  a  curious 
thing  to  inquire  how  a  tribunal  composed  of  such 
men  as  it  was  —  that  is  to  say,  of  men  like  Coke,  and 
Bacon,  and  Hobart,  and  Crewe,  and  Laud,  and  Yelver- 
ton  —  should  have  so  utterly  failed  to  commend  their 
administration  of  justice  to  either  their  own  or  to 
any  other  day  or  land.  Indeed,  when  we  see  what 
men  filled  the  offices  which  are  named  in  tlie  statute 
constituting  this  court,  it  is  impossible  to  conceive  of 
a  tribunal  better  able  to  discharge,  or  more  certain  to 
discharge  with  integrity,  with  justice,  with  decorum, 
with  every  sentiment  of  respect  for  the  living  and 
the  dead,  with  all  the  regards  that  were  due  to  the 
accused  and  the  accuser,  and  with  the  many  exquisite 
social  considerations  wliich  the  honor,  the  offices,  and 
dignity  of  the  persons  frequently  before  it  required 
at  their  hand,  than  a  tribunal  thus  ordained  ;  and  that 
its  deliberations  were  not  with  open  doors,  and  that 
its  powers  were  almost,  in  fact,  unlimited,  were  rea- 
sons, one  might  say,  a  priori,  why  its  judgments 
should  give  the  nation  satisfaction. 

This  particular   topic  —  the   degeneration   of   the 
Star-Chamber  —  itself  makes  a  curiosity  of  the  law ; 


THE  LAW  REPORTERS.  139 

and  as  much,  perhaps,  of  the  Bigarrures  de  I'Esprit 
Humain.  It  is  one  on  which  either  Buckle  or  Scarron 
could  exhaust  their  powers.  We  give  a  few  cases, 
all  of  them  from  Hobart's  Eeports.  As  we  read 
them,  one  cannot  help  thinking  that  Lords  Bacon  and 
Yelverton  (whom  Bacon  styled  a  man  of  "  very  good 
I)arts,"  which  made  acquaintance  between  them  on 
"  first  sight " ),  and  other  of  the  bright  geniuses  who 
adorned  that  age  and  court,  must  have  been  extremely- 
amused  at  the  questions  which  came  occasionally 
before  their  consideration. 

"  The  Lady  Arabella,"  mentioned  in  the  Countess 
of  Shrewsljury's  Case,  which  is  one  of  those  we  give, 
was  of  course  the  Lady  Arabella  Stuart,  and  the 
"  supposed  child  "  was  necessarily  a  matter  of  vast 
curiosity  to  the  women,  as  well  as  of  the  most  well- 
founded  anxiety  to  the  graver  part  of  the  nation;  as 
involving  directly  the  heirship  of  the  Stuarts  to  the 
throne.  Our  ideas  of  the  chivalrous  notions  of  the 
Star-Chamber  receive  a  sad  abatement  from  one  of 
the  cases  we  present  (Tufton  v.  Nevill),  in  which  the 
court,  while  deciding  that  so  delicate  a  matter  as 
solicitation  of  chastity  is  not  examinable  even  by  it, 
yet  intimates,  most  ungallantly,  that  a  man,  if  com- 
pelled to  answer  on  oath,  might  criminate  a  lady's 
virtue  where  he  himself  had  been  gratified  by  her 
regards.  Very  different  was  Sir  Thomas  Erskine's 
opinion,  as  will  be  recalled  by  every  one  familiar 
with  his  brilliant  and  beautiful  speeches. 


140  CURIOSITIES   OF 

Lord  Darcy  v.  Markham.^ 

The  Lord  Darcy  of  the  north  sued  Gervase  Mark- 
ham,  esquire,  in  the  Star-Chamber,  and  the  case  fell 
out  to  be  thus :  that  they  had  hunted  together,  and 
the  defendant  and  a  servant  of  the  plaintiff,  one 
Beckwith,  fell  together  by  the  ears  in  the  field,  and 
Beckwith  threw  him  down  and  was  upon  him  cufhng 
of  him,  and  the  Lord  Darcy  took  him  off  and  re- 
proved his  servant,  and  yet  Markham  chid  him, 
charging  him  with  maintaining  his  man.  And  the 
Lord  Darcy  rephed,  that  he  had  used  him  kindly,  for 
if  he  had  not  rescued  him  from  his  man,  he  liad 
beaten  him  to  rags.  Whereupon  Markham  wrote 
five  or  six  letters  to  the  Lord  Darcy,  and  subscribed 
them  with  his  name,  but  sent  them  not,  but  dispersed 
them  unsealed  in  the  fields,  whereof  the  effect  was, 
that  whereas  the  Lord  Darcy  had  said,  that  but  for 
him  his  man  Beckwith  had  beat  him  to  rags,  he  lied, 
and  that  he  would  maintain  with  his  life ;  and  then 
said,  that  he  had  dispersed  those  letters  that  he  might 
find  them,  or  somebody  else  miglit  bring  them  to 
him  ;  and  concluded  that  if  he  were  desirous  to  speak 
with  him,  that  he  should  send  his  boy,  and  he  should 
be  well  used.  Tliis  cause  was  effectually  handled  at 
the  common  law,  not  enforced  by  the  King's  procla- 
mation, because  the  defendant  had  no  knowledge  of 
the  proclamation,  nor  by  likelihood  could  have,  it  was 
so  soon  after  the  proclamation.     But  the  plaintiff's 

1  Hobart,  120. 


THE  LAW  REPORTERS.  141 

counsel,  by  direction  of  the  court,  left  the  proclama- 
tion, and  yet  Markham  was  censured  and  fined  £  500. 
The  reason  of  the  sentence  was,  that  this  was  a  com- 
pounded* misdemeanor,  for  the  letter  tlms  dispersed 
was  in  the  nature  of  a  libel,  slanderous  and  defama- 
tory to  my  Lord  Darcy ;  and  the  other  point  was, 
tliat  though  there  were  no  direct  challenge  to  my 
Lord  Darcy  to  fight,  yet  there  were  plain  provocations 
to  it,  and,  as  it  were,  to  call  and  challenge  my  Lord 
Darcy  to  fight  him.  And  though  the  case  was  some- 
thing aggravated,  that  it  was  to  a  peer  of  the  realm, 
yet  the  censuring  of  the  fact  rose  out  of  the  nature 
of  it,  and  not  out  of  the  .circumstances  of  the  person. 


Marshall  v.  Steward. ^ 
Maeshall  brought  an  action  of  the  case  against 
Steward,  reciting  the  statute  of  1  Jac.  of  invocation  of 
foul  spirits,  (which  was  needless,)  for  speaking  these 
words  unto  him  :  "  The  devil  appears  unto  thee  every 
night  in  the  likeuess  of  a  black  man,  riding  upon  a 
black  horse,  and  thou  conferrest  with  him,  and  what- 
soever thou  dost  ask  him  he  doth  give  it  thee,  and 
that  is  the  reason  thou  hast  so  much  money."  And 
alter  a  verdict  finding  the  words,  the  court  gave  judg- 
ment for  the  plaintiff. 


Weenham's  Case.^ 
Yelverton,  attorney-general,  informed  in  the  Star- 
Chamber,  ore  tonus,  against  John  Wrenham,  for  a 

1  Hobart,  129.  2  Hobart,  220. 


142  CURIOSITIES  OF 

complaint  by  him  exhibited  against  Sir  Francis  Bacon, 
Lord  Cliancellor,  to  the  King,  in  a  book  containing  a 
scandalous  censure  of  a  decree  made  by  the  said 
Lord  Chancellor  against  him,  for  one  Sir  Edward 
Fisher.  In  the  sentencing  of  which  case  it  was 
resolved  by  the  whole  court  that  it  was  lawful  for 
any  subject  to  petition  the  King  for  redress,  in  an 
humble  and  modest  manner,  where  he  finds  himself 
grieved  by  a  sentence  or  judgment,  —  for  access  to  the 
sovereign  must  not  be  shut  up  in  case  of  the  subject's 
distresses ;  but  on  the  other  side,  it  is  not  permitted, 
under  color  of  a  petition  and  refuge  to  the  King,  to 
rail  upon  the  judge  or  his  sentence,  and  to  make  him- 
self judge  in  his  own  cause,  by  prejudging  it  before 
the  rehearing  (for  which  his  suit  to  the  King  should 
be),  which  Wrenham  in  this  case  did,  through  his 
whole  book,  with  the  most  desperate  boldness  and 
despiteful  and  virulent  words  that  was  possible.  It 
was  also  resolved,  that  the  injustice  of  the  decree  was 
not  to  be  questioned  in  this  case;  for  that  was  not 
the  ponit  now  examinable ;  though  in  that  it  did 
appear  that  he  had  done  my  Lord  Chancellor  much 
and  great  wrong.  So  he  was  censured  a  thousand 
pounds  fine. 


TUFTON   V.    NeVILL.1 

Sir  Humphrey  Tufton  exhibited  a  bill  etc.  against 
Master  Christopher  NeviU,  son  to  the  Lord  Aburga- 

1  Hobart,  195. 


THE  LAW  REPORTERS.  143 

venny,  for  a  riot,  and  laid  by  way  of  inducement, 
that  Nevill  had  solicited  his  wife  to  inchastity  both 
before  and  since  his  marriage  with  her;  and  that  this 
being  made  known  unto  him  by  his  wife,  he  caused 
her  to  write  letters  to  the  defendant,  giving  him  hope 
of  her  inclination,  and  appointing  him  a  time  by 
night,  and  place ;  at  which  the  defendant  coming, 
(and  the  plaintiff,  with  a  man  disguised  like  a  woman 
being  there  expecting  as  much,)  the  defendant  and 
others  in  this  company  made  a  riot  upon  him  and  his 
company. 

To  this  the  defendant,  as  to  the  riot  ansivered ;  but 
as  to  the  solicitation  of  the  lady's  chastity  demurred. 

Whereupon,  motion  being  made  in  court,  though 
there  were  some  of  another  mind,  yet  it  was  Re- 
solved and  EuLED  that  the  defendant's  demurrer  was 
good  ;  and  though  it  was  urged  that  this  inducement 
served  very  much  both  to  aggravate  the  defendant's 
riot  and  to  justify  the  plaintiff's  train,  yet  the  point 
of  itself  was  naturally  of  another  jurisdiction^  and 
for  the  spiritual,  whose  proceeding  in  this  case  was 
not  to  be  usurped  nor  prevented.  Besides,  the  fault 
of  solicitation  is  of  so  uncertain  acceptation,-  as  is 
not  fit  to  be  here  examined.  And,  lastly,  to  examine 
such  a  fault  by  the  oath  of  the  delinquent  is  not 
allowable  by  us,  being  a  delict  that  tve  cannot  censure. 
And  it  may  prove  scandalous  in  the  event  if  the  de- 
fendant should  upon  his  oath  (which  were  in  him 
excusable  if  the  court  should  constrain  his  answer) 


144  CURIOSITIES   OF 

criminate  tlie  lady,  were  it  true  or  false  ;  for  that 
could  never  be  satisfied,  being  a  point  so  secret  as 
solicitation  only. 


HicKs's  Case.i 

One  sent  a  letter  closed  and  sealed  up  to  Sir 
Baptist  Hicks,  which  was  so  delivered  to  his  hands, 
containing  many  despiteful  scandals  delivered  ironice, 
as  saying,  "  You  will  not  play  the  Jew  nor  the  hypo- 
crite," and  in  that  sort  taunting  liim  for  an  almshouse, 
and  certain  good  works  that  he  had  done  ;  all  which 
he  charged  him  to  do  for  vainglory.  "Whereupon 
Sir  Baptist  Hicks  sued  him  in  the  Star-Chamber. 
And  now  upon  the  hearing  it  was  resolved,  that, 
though  it  were  not  proved  that  the  defendant  had  any 
way  published  it,  yet  the  court  would  hold  plea  of  it, 
and  so  did,  and  fined  the  defendant,  and  sentenced 
him  to  wear  papers,  and  to  make  his  submission  to 
Sir  Baptist  Hicks  in  Cheapside.  Yet  an  action  of 
tlie  case  will  not  lie  in  that  case,  for  want  of  publica- 
tion ;  but  the  King  and  Commonwealth  are  interested 
in  it,  because  it  is  a  provocation  to  a  challenge,  and 
breach  of  tlie  peace. 


CouNTEs.s  OF  Shrewsbury's  Case.^ 
The  Countess  of  Shrewsbury  was  fined  ten  thousand 
pounds  and  committed  to  the  Tower,  for  that,  being 
called  to  the  Council  Table  and  interrogated  what  she 

1  Hobai-t,  215.  2  Hobart,  235. 


THE  LAW  REPORTERS.  145 

knew,  or  had  heard  or  thought,  of  a  supposed  child 
which  it  was  rumored  that  Lady  Arabella  should  have 
had,  she  refused,  obstinately,  to  make  any  answer,  for 
it  was  judged  that  this  was  a  question  of  State.  For 
there  is  not  one  thing  that  doth  more  concern  the 
peace  of  a  kingdom  than  the  certainty  of  the  royal 
line ;  insomuch  as  suppositious  persons  liave  raised 
as  great  commotions  and  troubles  in  States  as  the 
discords  of  true  heirs  and  descendants,  —  as  in  the 
case  of  Perkin  Warbeck,  he  at  home ;  and  counter- 
feit Sebastian  of  Portugal,  and  many  others 

The  lady  was  the  more  pressed  to  answer  this  matter, 
because,  being  more  familiar  and  inward  with  the 
Lady  Arabella  than  any  other,  she  must  needs  have 
falsified  the  rumor;  for  all  men  of  understanding  held 
it  to  he  untrue. 


Traske's  Case.i 
One  John  Traske,  a  minister  that  held  opinion  that 
the  Jewish  Sabbath  ought  to  be  observed,  and  not  ours, 
and  that  we  ought  to  abstain  from  all  manner  of 
swine's  flesh ;  being  examined  upon  these  things,  he 
confessed  that  he  had  divulged  these  opinions  and 
had  labored  to  bring  as  many  to  his  opinion  as  he 
could ;  and  had  also  written  a  letter  to  the  King 
wherein  he  did  seem  to  tax  his  Majesty  of  hypocrisy, 
and  did  expressly  inveigh  against  the  Bishop's  High 
Commissioners  as  bloody  and  cruel  in  their  proceed- 

1  Hobart,  236. 


146  CURIOSITIES   OF 

ings  against  him  and  a  papal  clergy.  Now  he  being 
called  ore  tenus,  was  sentenced  to  fine  and  imprison- 
ment —  not  for  holding  these  opinions,  for  these  were 
examinable  in  the  Ecclesiastical  Courts,  and  not  here, 
but  —  for  making  of  conventicles  and  factions  by 
that  means,  which  may  tend  to  sedition  and  com- 
motion, and  for  scandalizing  the  King,  the  bishops, 
and  the  clergy. 

Countess  of  Exeter  v.  Lady  Eoss.i 
In  the  great  cause  between  the  Countess  of  Exeter, 
the  Lady  Eoss,  and  others,  because  the  Lady  Eoss  and 
one  Sarah  Swarton,  her  maid,  had  charged  the  Coun- 
tess of  Exeter,  that  she  had  delivered  unto  the  said 
Lady  Eoss  at  Wimbleton,  at  the  Earl's  house,  in  a 
certain  chamber  there,  a  paper  written  and  signed  by 
herself  (as  she  said),  containing  a  confession  of  certain 
foul  faults,  and  a  submission  thereupon,  which  was 
showed  unto  the  King ;  his  Majesty  conmianded 
Serjeant  Crew  and  the  Serjeant  Moore,  of  counsel 
of  either  side,  to  go  to  Wimbleton,  and  there,  in  the 
same  chamber,  to  examine  the  Lady  Eoss  and  Swarton, 
upon  all  such  things  as,  upon  their  view  of  the  place, 
they  might  judge  likely  to  discover  the  truth  or  false- 
hood of  the  same  matter  ;  which  they  did  accordingly, 
without  oath.  Now  the  same  persons  being  after- 
wards examined  in  court  as  defendants,  upon  aU 
things  that  the  plaintiffs   listed;   they   did  further 

1  Hobart,  236. 


THE  LAW  REPORTERS.  147 

examine  them  upon  interrogatories,  whether  that 
declaration  which  they  had  made  at  Wimbleton  be- 
fore tlie  two  Serjeants  were  true  or  not ;  but  they  did 
not  show  them  that  declaration  now ;  whereupon 
they  answered  that  they  were  true. 

Now,  upon  motion  in  open  court,  it  was  resolved 
that  these  examinations  were  not  well  taken ;  for  no 
man  is  bound  by  an  examination  in  court,  till  first  he 
have  advisedly  read,  perused,  and  corrected  it,  as  he 
sees  cause,  and  then  finally  concluded  it.  Therefore, 
this  being  first  taken  without  oath,  there  was  no  reason 
to  bind  them  to  it  by  a  new  oath  by  memory  without 
review,  and  therefore  by  order  it  was  suppressed. 
Nevertheless,  because  it  was  like  that  the  said  exami- 
nation might  serve  the  better  to  discover  truth,  it  was 
ordered  that  the  same  their  declarations  should  be 
showed  them,  and  they  re-examined  upon  them. 
And  so  they  were. 

STAR-CHAMBER  CASES.  We  print  a  few  cases 
from  this  scarce  volume.  Their  brevity  is  cer- 
tainly commendable. 

"  Note  that  one  G.  writes  his  letter  to  a  juror  to 
appear  between  L.  and  C.  D.  and  to  do  his  conscience, 
and  he  was  fined  at  twenty  pounds  here,  because  he 
had  nothing  to  do  in  the  matter,  circa  27  Eliz.  Here 
note  that  no  man  ought  to  meddle  in  any  matter  de- 
pending in  suit  where  he  hath  nothing  to  do." 

"  One  L.  O.  of  Kent  was  punished  in  the  court  for 


148  CURIOSITIES  OF 

falsely  going  about  to  prove  one  that  was  his  cousin 
or  brother  to  be  a  traitor,  and  for  this  he  was  adjudged 
to  ride  about  Westminster  Hall  with  his  face  to  the 
horse-tail,  circa  27  Eliz.  as  I  heard." 

"  Note  that  one  S.  of  the  county  of  Lancaster  for 
falsely  procuring  one  to  be  indicted  for  the  death  of 
another,  was  fined  in  this  court  to  a  great  sum,  circa 
31  Eliz." 

"  A  Knight  of  the  county  of  Northumberland  was 
fined  in  a  great  sum  in  the  Star-Chamber,  because  he 
permitted  a  seditious  book  called  Martin  Marprelate 
to  be  printed  in  his  house,  32  Eliz." 

"  One  writes  to  a  justice  of  the  peace  to  send  him 
his  warrant  with  a  blank,  to  put  in  one  he  would 
attach  upon  a  suspicion  of  felony,  and  so  the  justice 
did,  and  because  he  sent  his  warrant  with  a  blank  to 
put  in  the  name  of  one  he  knew  not,  neither  the  mat- 
ter, before  the  making  of  his  warrant,  he  was  fined 
in  this  court,  circa  30  Eliz. ;  and  it  was  one  Sir  J.  R" 

"  A  woman  great  with  child,  which  was  suspected 
of  incontinency  without  caiise,  was  commanded  to  be 
whipped  in  Bridewell,  London,  by  the  Masters  there  ; 
and  because  she  fell  to  travail  before  her  time  etc. 
they  were  for  this  fined  in  this  court  at  a  great  sum. 
And  by  order  of  the  court  it  was  awarded  that  they 
should  pay  a  certain  sum  to  the  said  woman,  about 
the  31  of  Eliz.  See  the  proceedings  there  concerning 
this  matter  the  year  aforesaid,  set  down  more  at  large." 

"  A  justice  of  the  peace  was  put  out  of  commission 


THE  LAW  REPORTERS.  149 

by  order  of  this  court,  for  because  lie  refused  to  take 
the  peace  of  one  who  came  to  him,  and  offered  him 
surety  for  the  peace,  because  the  justice  which  did 
award  the  warrant  was  not  his  friend,  for  which 
reason  he  refused  to  go  before  him  to  be  bound  to  the 
peace." 

IN  a  recent  case  in  the  Supreme  Court  of  the 
United  States,  the  whole  business  of  making  hats, 
from  the  disintegrating  of  the  fur  to  the  production 
of  a  hat-body,  was  actually  carried  on  and  exhibited 
in  the  court-room ;  and  the  printed  argument  of 
counsel  contained,  as  "  exhibits,"  the  skin  of  the 
beaver  as  it  comes  from  the  animal,  with  specimens 
of  fur  as  thus  exhibited,  and.  also  as  exhibited  in 
various  conditions  and  processes,  down  to  the  very 
surface  of  the  "  brush  "  and  "  napped  "  hats.  "  No 
similar  argument,"  says  the  reporter,  "perhaps,  was 
ever  made  in  any  court  of  law ;  nor  could  a  case  be 
explained  in  a  manner  more  satisfactory."  ^ 

ME.  JUSTICE  PUTNAM"  thus  spoke  of  the 
power  of  compression  and  discrimination  of 
Chief  Justice  Parsons  :  "  As  light  and  spongy  fabrics 
are  reduced  to  portable  size  by  hydraulic  pressure,  so 
the  verbose  readings  of  the  law  were,  by  the  force  of 
his  great  mind,  reduced  to  clear,  practical  rules."  ^ 

1  Burrr.  Duryee,  1  Wallace,  531. 

2  Deblois  v.  Ocean  Insurance  Co.,  16  Pick.  p.  310. 


150  CURIOSITIES   OF 

UPON  the  hearing  of  a  petition  before  Vice- 
Chancellor  Kindersley,  the  death  of  Lord 
Byron,  the  poet,  was  a  material  fact  in  the  peti- 
tioner's title  ;  but  it  being  assumed  that  the  court 
would  take  judicial  notice  of  a  fact  which  was  well 
known  to  the  whole  world,  no  evidence  was  adduced 
upon  the  subject.^  Counsel  observed  that  his  lord- 
ship having  died  in  Greece,  there  would  probably  be 
some  difficulty  in  obtaining  the  kind  of  evidence 
which  the  court  ordinarily  required.  The  Vice-Chan- 
cellor,  however,  declined  to  make  the  order,  except 
upon  the  production  of  the  usual  evidence,  for  which 
purpose  the  petition  stood  over.  This  is  a  curious 
instance  of  adherence  to  a  strict  general  rule  of 
evidence,  and  the  more  so  as  the  close  connection 
between  the  families  of  the  Vice-Chancellor  and  the 
poet  might  be  supposed  to  give  the  court  additional 
reason  for  dispensing  with  evidence  of  a  fact  which 
is  a  part  of  the  history  of  the  world. 


ALUDICEOUS  attempt  was  made  in  a  recent 
case  ^  to  fabricate  a  consideration.  A  father  held 
a  promissory  note  of  his  son,  who  had  teased  him  with 
complaints  of  not  having  received  so  much  money 
or  so  many  advantages  from  his  father  as  his  other 
children,  as,  it  was  alleged,  the  father  had  admitted ; 

1  The  hearing  was  in  1862.     Lord  Byron  died  in  1824. 
■2  White  c.  Bluett,  23  L.  J.  N.  S.  Exch.  36. 


THE  LAW  REPORTERS.  151 

and  that  he  had  agreed,  that,  if  his  son  would  cease 
forever  to  make  such  complaints,  he  should  be  absolved 
from  payment  of  the  note.  The  father  died,  and  his 
executor,  finding  the  note  among  the  testator's  papers, 
sued  the  son  upon  it  at  law ;  and  he  pleaded  the  facts 
as  an  answer  to  the  action.  The  plea  was  demurred 
to  as  showing  no  consideration  ;  and  the  son's  counsel 
endeavored  to  support  his  case  by  alleging  that  he 
had  a  right  to  make  the  complaints  alleged,  and  had 
subjected  himself  to  a  detriment,  by  not  being  able  to 
continue  his  ill-founded  complaints  !  The  court  con- 
temptuously dismissed  the  plea.  Baron  Parke  sar- 
castically asked,  "  Is  an  agreement  by  a  father,  in 
consideration  that  his  son  will  not  hore  him,  a  bind- 
ing contract  ?  "  By  the  argument,"  said  the  Lord 
Chief  Baron,  "  a  principle  is  pressed  to  an  absurdity, 

as  a  bubble  is  blown  until  it  bursts Looking 

at  the  words  merely,  there  is  some  foundation  for  the 
argument;  and  following  the  words  only,  the  con- 
clusion may  be  arrived  at.  In  reality,  there  was  no 
consideration  whatever.  The  son  had  no  right  to 
complain,  for  the  father  might  make  what  distribution 
of  his  property  he  liked ;  and  the  son's  abstaining 
from  doing  what  he  had  no  light  to  do  can  be  no 
consideration^ 

IN  "  Star-Chamber  Cases,"  perjury,  more  quaintly 
than  accurately,  is  thus  defined :  "  Perjury  is  a  lie 
confirmed  by  oath." 


152  CURIOSITIES   OF 

THE  following  are  specimens  of  the  legal  nomen- 
clature of  Westminster  Hall. 

"In  fermedon  the  tenant  having  demanded  a  view 
after  a  general  imparlance,  the  demandant  issued  a 
writ  of  petit  cape  —  held  irregular." 

Also  :  "  If,  after  nulla  bona  returned,  a  testatum  be 
entered  upon  the  roll,  quod  devastavit,  a  writ  of  in- 
quiry shall  be  directed  to  the  sheriff,  and  if  by  in- 
quisition the  devastavit  be  found  and  returned,  there 
shall  be  a  scire  facias  quare  executio  non  de  propriis 
bonis,  and  if  upon  that  the  sheriff  returns  scire  feci, 
the  executor  or  administrator  may  appear  and  traverse 
the  inquisition." 

Again  :  "  If  the  record  of  Nisi  prius  be  a  die  Sancti 
Trinitatis  in  tres  Septimanas  nisi  a  27  June,  prius 
venerit,  which  is  the  day  after  the  day  in  Bank, 
which  was  mistaken  for  a  die  Sancti  Michaelis,  it 
shall  not  be  amended." 


IT  is  curious  to  observe  how  bitter  a  prejudice 
Themis  has  against  her  own  humbler  ministers. 
Most  of  the  bitterest  legal  jokes  are  at  the  expense 
of  the  class  who  have  to  carry  the  law  into  effect. 
Take,  for  instance,  the  case  of  the  bailiff  who  had 
been  compelled  to  swallow  a  writ,  and,  rushing  into 
Lord  Norbury's  court  to  proclaim  the  indignity  done 
to  justice  in  his  person,  was  met  by  the  expression  of  a 
hope  that  the  writ  was  "  not  returnahle  in  this  court." 


THE  LAW  REPORTERS.  153 

THEEE  are  two  old  methods  of  paying  rent  in 
Scotland,  —  kane  and  carriages ;  the  one  being 
rent  in  kind  from  the  farm-yard,  the  other  being 
an  oblieration  to  furnish  the  landlord  with  a  certain 
amount  of  carriage,  or  rather  cartage.  In  one  of  the 
vexed  cases  of  domicile,  which  had  found  its  way  into 
the  House  of  Lords,  a  Scotch  lawyer  argued  that  a 
landed  gentleman  had  shown  his  determination  to 
abandon  his  residence  in  Scotland  by  having  given 
up  his  "  kane  and  carriages."  It  is  said  that  the 
argument  went  further  than  he  expected,  —  the  Eng- 
lish lawyers  admitting  that  it  was  indeed  very  strong 
evidence  of  an  intended  change  of  domicile  Mdien  the 
laird  not  only  ceased  to  keep  a  carriage,  but  actually 
divested  himself  of  his  walkingj-cane. 


LUTWYCHE'S  EEPOETS  were  edited  in  1718 
by  W.  Nelson.  In  the  Preface  this  whimsical 
annotator,  speaking  of  the  subtlety  and  obscurity 
with  which  the  science  of  pleading  was  invested, 
observes :  "  Here  we  may  see  what  artificial  fencing 
there  is  between  replications  and  rejoinders,  till  an 
end  is  put  to  the  strife  by  some  general  or  special 
demurrer,  —  and  abundance  more  of  such  cobweb 
subtleties,  spun  so  very  fine  by  the  spiders  of  the  law, 
that  one  would  think  it  done  on  purpose  to  let  jus- 
tice fall  through." 

7* 


154  CURIOSITIES   OF 

ON  the  supposition  that  there  are  few  readers  who, 
like  Lord  King,  can  boast  of  having  read  the 
Statutes  at  Large  through,  we  venture  to  give  a  title 
of  an  Act  —  a  title  only,  remember,  of  one  of  the 
bundle  of  acts  passed  in  one  session  —  as  an  instance 
of  the  comprehensiveness  of  English  statute  law, 
and  the  lively  way  in  which  it  skips  from  one  subject 
to  another.     It  is  entitled  — 

"  An  Act  to  continue  several  laws  for  the  better 
regulating  of  pilots,  for  the  conducting  of  ships  and 
vessels  from  Doves,  Deal,  and  the  Isle  of  Thanet,  up 
the  Piiver  Thames  and  Medway ;  and  for  the  permit- 
ting rum  or  spirits  of  the  British  sugar  plantations  to 
be  landed  before  the  duties  of  excise  are  paid  thereon ; 
and  to  continue  and  amend  an  Act  for  preventing 
fraud  in  the  admeasurement  of  coals  within  the  city 
and  liberties  of  Westminster,  and  several  parishes 
near  thereunto ;  and  to  continue  several  laws  for  pre- 
venting exactions  of  occupiers  of  locks  and  wears 
upon  the  Eiver  Thames  westward ;  and  for  ascertain- 
ing tlie  rates  of  water-carriage  upon  the  said  river ; 
and  for  the  better  regulation  and  government  of  sea- 
men in  the  merchant  service ;  and  also  to  amend  so 
much  of  an  Act  made  during  the  reign  of  King 
George  I.  as  relates  to  the  better  preservation  of 
salmon  in  the  Eiver  Eibble ;  and  to  regulate  fees  in 
trials  and  assizes  at  nisi  prius  "  etc.  But  this  gets 
tiresome,  and  we  are  only  half-way  through  the  title 
after  all.     If  the  reader  wants  the  rest  of  it,  as  also 


THE  LAW  REPORTERS.  155 

the  substantial  Act  itself,  whereof  it  is  the  title,  let 
him  turn  to  the  23d  of  Geo.  II.  eh.  26. 

No  wonder,  if  he  anticipated  this  sort  of  thing, 
that  Bacon  should  have  commended  "  the  excellent 
brevity  of  the  old  Scots  acts."  Here,  for  instance, 
is  a  specimen,  an  actual  statute  at  large,  such  as  they 
were  in  those  pygmy  days  :  — 

"Item,  it  is  statute  that  gif  onie  of  the  King's 
lieges  passes  in  England,  and  resides  and  remains 
there  against  the  King's  will,  he  shall  be  halden  as 
Traiter  to  the  King." 

Here  is  another,  very  comprehensive,  and  worth  a 
little  library  of  modern  statute-books,  if  it  was  duly 
enforced :  — 

"Item,  it  is  statute  and  ordained,  that  all  our 
Sovereign  lord's  lieges  being  under  his  obeisance,  and 
especially  the  Isles,  be  ruled  by  our  Sovereign  lord's 
own  laws,  and  the  common  laws  of  the  realm,  and 
none  other  laws." 


"  'T'XESCENDEEE,  to  descend  or  to  spring  of  one's 
-L^  body ;  hereupon  they  wdiich  are  born  of  us 
are  called  by  the  name  of  descendants,  which  with 
them  that  ascend  make  the  right  line,  and  the  ascen- 
dants and  descendants  cannot  marry  together,  where- 
fore, if  Adam  were  now  living,  he  could  not  marry  a 
wife."  ^ 

1  Fulbecke  Study  ot  the  Laws,  p.  203. 


156  CURIOSITIES   OF 

ON  the  trial  of  the  Seven  Bishops,  during  the 
argument  of  the  Solicitor-General  who  was 
of  counsel  for  the  King,  Mr.  Justice  Powell  observed 
to  the  Lord  Chief  Justice,  "  My  Lord,  this  is  wide. 
Mr.  Solicitor  would  impose  upon  us  :  let  him  make  it 
out,  if  he  can,  that  the  King  has  such  a  power,  and 
answer  the  objections  made  by  the  defendants'  coun- 
sel." Lord  Chief  Justice :  "  Brother,  impose  upon 
us  !  He  shall  not  impose  upon  me ;  I  know  not  what 
he  may  upon  you ;  for  my  part,  I  do  not  believe  one 
word  he  says."  ^ 

"  rriHE  law  does  not  recognize  the  dreams,  visions, 
J-  or  revelations  of  a  woman  in  a  mesmeric  sleep 
as  necessaries  for  a  wife,  for  which  the  husband,  with- 
out his  consent,  can  be  held  to  pay.  These  are  fancy 
articles,  which  those  who  have  money  of  their  own  to 
dispose  of  may  purchase,  if  they  think  proper ;  but  they 
are  not  necessaries,  known  to  the  law,  for  which  the 
wife  can  pledge  the  credit  of  her  absent  husband."  ^ 

"  y  EEMEMBEPt,"  writes  Lanibard,"  that,  not  many 
J-  years  since,  women  were  punished  in  the  Star- 
Chamber,  and  that  worthily,  for  that,  having  put  off 
their  seemly  shamefacedness  and  apparelling  them- 
selves in  the  attire  of  men,  they  assembled  in  great 
number,  and  riotously  pulled  down  an  enclosure.''  ^ 

1  12  Howell  state  Trials,  183. 

2  .Tudgment  in  Wood  v.  O'Kelley,  8  Cush.  p.  408. 
2  Kivniirclm.  179,  A.  D.  1581. 


THE  LAW   REPORTERS.  157 

LOED  DENMAN,  delivering  judgment  in  the 
House  of  Lords,  in  a  celebrated  case,  took  oc- 
casion to  remark,  that  a  large  portion  of  the  legal 
oinnion  which  has  passed  current  for  law  falls  with- 
in the  description  of  "  law  taken  for  granted  "  ;  and 
that,  "  when,  in  the  pursuit  of  truth,  we  are  obliged 
to  investigate  the  grounds  of  the  law,  it  is  plain,  and 
has  often  been  proved  by  recent  experience,  that  the 
mere  statement  and  restatement  of  a  doctrine  —  the 
mere  repetition  of  the  cantilena  of  lawyers  —  cannot 
make  it  law,  unless  it  can  be  traced  to  some  com- 
petent authority,  and  if  it  be  irreconcilable  to  some 
clear  legal  principle."  ^ 

IN  a  recent  case  in  Indiana,  after  the  jury  had  rd^ 
tired  to  deliberate  upon  their  verdict,  the  bailiff, 
without  the  consent  of  the  defendant,  or  the  leave  of 
the  court,  furnished  to  them,  at  their  request,  a  volume 
of  Bishop's  Criminal  Law.  This  was  held  to  be  mis- 
conduct, both  on  the  part  of  the  officer  and  the  jury, 
and  such  as  to  entitle  the  defendant  to  a  new  trial.^ 


aODBOLT  reports  a  case  in  which  Chief  Justice 
Belknap  lays  down  a  certain  proposition  which 
"  he  swore  to  be  law."  ^ 

1  O'Connell  v.  The  Queen,  11  Clark  &  Finuelly,  p.  373      And  see  per 
Pollock  C.  B.  2  H  &  N.  139. 

2  Newkirk  v.  The  State,  27  Indiana,  1. 

3  Godbolt,  p.  34. 


158  CURIOSITIES   OF 

DISSENTING  opinion  of  Mr.  Justice  Livingston 
in  Pierson  v.  Post :  ^  — 

"  My  opinion  differs  from  that  of  the  court.  Of  six 
exceptions  taken  to  the  proceedings  below,  all  are 
abandoned  except  tlie  third,  which  reduces  the  con- 
troversy to  a  single  question. 

"  Whether  a  person  who,  with  his  own  hounds, 
starts  and  hunts  a  fox  on  waste  and  uninhabited 
ground,  and  is  on  the  point  of  seizing  his  prey,  ac- 
quires such  an  interest  in  the  animal  as  to  have  a  right 
of  action  against  another,  who  in  view  of  the  hunts- 
man and  his  dogs  in  full  pursuit,  and  with  knowledge 
of  the  chase,  shall  kill  and  carry  him  away  ? 

"  This  is  a  knotty  point,  and  should  have  been  sub- 
mitted to  the  arbitration  of  sportsmen,  without  poring 
over  Justinian,  Fleta,  Bracton,  Puffendorf,  Locke, 
Barbeyrac,  or  Blackstone,  all  of  whom  have  been 
cited ;  they  would  have  had  no  difficulty  in  coming 
to  a  prompt  and  correct  conclusion.  In  a  court  thus 
constituted,  the  skin  and  carcass  of  poor  reynard 
would  have  been  properly  disposed  of,  and  a  precedent 
set,  interfering  with  no  usage  or  custom  which  the 
experience  of  ages  has  sanctioned,  and  which  must  be 
so  well  known  to  every  votary  of  Diana.  But  the 
parties  have  referred  the  question  to  our  judgment, 
and  we  must  dispose  of  it  as  well  as  we  can,  from  the 
partial  lights  we  possess,  leaving  to  a  higher  tribunal 
the  correction  of  any  mistake  which  we  may  be  so 

1  3Caines,  175,  180. 


THE  LAW  REPORTERS.  159 

unfortunate  as  to  make.  By  the  pleadings  it  is 
admitted  that  a  fox  is  a  '  wild  and  noxious  beast.' 
Both  parties  have  regarded  him,  as  the  law  of  nations 
does  a  pirate,  'liostem  humani  generis,'  and  although 
'  de  mortuis  nil  nisi  bonum '  be  ^  maxim  of  our  pro- 
fession, the  memory  of  the  deceased  has  not  been 
spared.  His  depredations  on  farmers-  and  on  barn- 
yards have  not  been  forgotten ;  and  to  put  him  to 
death  wherever  found  is  allowed  to  be  meritorious, 
and  of  public  benefit.  Hence  it  follows,  that  our 
decision  should  have  in  view  the  greatest  possible 
encouragement  to  the  destruction  of  an  animal  so 
cunning  and  ruthless  in  his  career.  But  who  would 
keep  a  pack  of  hounds  ?  or  what  gentleman,  at  the 
sound  of  the  horn,  and  at  peep  of  day,  would  mount 
his  steed,  and  for  hours  together,  '  sub  jove  frigido,' 
or  a  vertical  sun,  pursue  the  windings  of  this  wily 
quadruped,  if,  just  as  night  came  on,  and  his  strata- 
gems and  strength  were  nearly  exhausted,  a  saucy  in- 
truder, who  had  not  shared  in  the  honors  or  labors 
of  the  chase,  were  permitted  to  come  in  at  the  death, 
and  bear  away  in  triumph  the  object  of  pursuit  ? 
Whatever  Justinian  may  have  thought  of  the  matter, 
it  must  be  recollected  that  his  Code  was  compiled 
many  hundred  years  ago,  and  it  would  be  very  hard 
indeed,  at  the  distance  of  so  many  centuries,  not  to 
have  a  right  to  establish  a  rule  for  ourselves.  In  his 
day,  we  read  of  no  order  of  men  who  made  it  a 
business,  in  the  language  of  the  declaration  in  this 


160  CURIOSITIES   OF 

cause,  '  with  hounds  and  dogs  to  find,  start,  pursue, 
hunt,  and  cliase '  these  animals,  and  that,  too,  without 
ary  other  motive  than  the  preservation  of  Eoman 
poultry ;  if  this  diversion  had  been  then  in  fashion, 
the  lawyers  who  composed  his  Institutes  would  have 
taken  care  not  to  pass  it  by  without  suitable  en- 
couragement. If  anything,  therefore,  in  the  Digests 
or  Pandects  shall  appear  to  militate  against  the  de- 
fendant in  error,  who  on  this  occasion  was  the  fox- 
hunter,  we  have  only  to  say  tempora  mutantur ;  and 
if  men  themselves  change  with  the  times,  why  should 
not  laws  also  undergo  an  alteration  ? 

"  It  may  be  expected,  however,  by  the  learned 
counsel,  that  more  particular  notice  be  taken  of  their 
authorities.  I  have  examined  them  all,  and  feel  great 
difficulty  in  determining,  whether  to  accpiire  dominion 
over  a  thing,  before  in  common,  it  be  sufficient  that 
we  barely  see  it,  or  ,know  where  it  is,  or  wish  for  it, 
or  make  a  declaration  of  our  will  respecting  it;  or 
whether,  in  the  case  of  wild  beasts,  setting  a  trap,  or 
lying  in  wait,  or  starting,  or  pursuing,  be  enough ; 
or  if  an  actual  wounding,  or  killing,  or  bodily  tact  and 
occupation  be  necessary.  Writers  on  general  law, 
who  have  favored  us  with  their  speculations  on  these 
points,  differ  on  them  all;  but,  great  as  is  the  diver- 
sity of  sentiment  among  them,  some  conclusion  must 
be  adopted  on  the  question  immediately  before  us. 
After  mature  deliberation,  I  embrace  that  of  Bar- 
beyrac  as  the  most  rational,  and  least  liable  to  objec- 


THE  LAW  REPORTERS.  161 

tion.  If  at  liberty,  "sve  might  imitate  the  courtesy  of 
a  certain  emperor,  who,  to  avoid  giving  offence  to  the 
advocates  of  any  of  these  different  doctrines,  adopted 
a  middle  course,  and  by  ingenious  distinctions  ren- 
dered it  difficult  to  say  (as  often  happens  after  a 
fierce  and  angry  contest)  to  whom  the  palm  of  victory 
belonged.  He  ordained  that  if  a  beast  be  followed 
with  large  dogs  and  hounds,  he  shall  belong  to  the 
hunter,  not  to  the  chance  occupant ;  and  in  like 
manner  if  he  be  killed  or  wounded  with  a  lance  or 
sword ;  but  if  chased  with  beagles  only,  then  he 
passed  to  the  captor,  not  to  the  first  pursuer.  If  slain 
with  a  dart,  a  sling,  or  a  bow,  he  fell  to  the  hunter,  if 
still  in  chase,  and  not  to  him  who  might  afterwards 
find  and  seize  him. 

"  Now,  as  we  are  without  any  municipal  regulations 
of  our  own,  and  the  pursuit  here,  for  aught  that 
appears  on  the  case,  being  with  dogs  and  hounds  of 
imperial  stature,  we  are  at  liberty  to  adopt  one  of  the 
provisions  just  cited,  which  comports  also  with  the 
learned  conclusion  of  Barbeyrac,  that  property  in 
animals  ferte  naturae  may  be  acquired  without  bodily 
touch  or  manucaption,  provided  the  pursuer  be  within 
reach,  or  have  a  reasonable  prospect  (which  certainly 
existed  here)  of  taking  what  he  has  thus  discovered 
an  intention  of  converting  to  his  own  use. 

"When  we  reflect  also  that  the  interest  of  our 
husbandmen,  the  most  useful  of  men  in  any  com- 
munity, will  be  advanced  by   the   destruction    of  a 


162  CURIOSITIES  OF 

beast  so  pernicious  and  incorrigible,  we  cannot  greatly 
err  in  saying  that  a  pursuit  like  the  present,  through 
waste  and  unoccupied  lands,  and  which  must  inevitably 
and  speedily  have  terminated  in  corporal  possession  or 
bodily  seisin,  confers  such  a  right  to  the  object  of  it, 
as  to  make  any  one  a  wrong-doer  who  shall  interfere 
and  shoulder  the  spoil." 

?l\ 

THE  following  case  is  curiously  suggestive  of  the 
state  of  the  country  round  London  in  the  days 
when  much  business  was  done  on  the  road :  ^  A  bill 
in  the  Exchequer  was  brought  by  Everett  against  a 
certain  Williams,  setting  forth  that  the  complainant 
was  skilled  in  dealing  in  certain  commodities,  "  such 
as  plate,  rings,  watches  etc.,"  and  that  the  defendant 
desired  to  enter  into  partnership  with  him.  They 
entered  into  partnership  accordingly,  and  it  was 
agreed  that  they  should  provide  the  necessary  plant 
for  the  business  of  the  firm  —  such  as  horses,  saddles, 
bridles  etc.  (pistols  not  mentioned)  —  and  should 
participate  in  the  expenses  of  the  road.  The  decla- 
ration then  proceeds,  "  And  your  orator  and  the  said 
Joseph  Williams  proceeded  jointly  with  good  success 
in  the  said  business  on  IJounslow  Heath,  where  they 
dealt  with  a  gentleman  for  a  gold  watch ;  and  after- 
wards the  said  Joseph  Williams  told  your  orator  that 
Finchley  in  the  county  of  Middlesex  was  a  good  and 
convenient  place  to  deal  in,  and  that  commodities 

1  The  Book-Hunter,  p.  138. 


THE  LAW  REPORTERS.  163 

■were  very  plenty  at  Finchley  aforesaid,  and  it  would 
be  almost  all  clear  gain  to  them ;  that  they  went 
accordingly,  and  dealt  with  several  gentlemen  for 
divers  watches,  rings,  swords,  canes,  hats,  cloaks, 
horses,  bridles,  saddles,  and  other  things ;  that  about 
a  month  afterwards  the  said  Joseph  Williams  in- 
formed your  orator  that  there  was  a  gentleman  at 
Blackheath  who  had  a  good  horse,  saddle,  bridle, 
watch,  sword,  cane,  and  other  things  to  dispose  of, 
which,  he  believed,  might  be  had  for  little  or  no 
money;  that  they  accordingly  went,  and  met  with 
the  said  gentleman,  and,  after  some  small  discourse, 
they  dealt  for  the  said  horse  etc.  That  your  orator 
and  the  said  Joseph  Williams  continued  their  joint 
dealings  together  in  several  places  —  viz.,  at  Bagshot 
in  Surrey,  Salisbury  in  Wiltshire,  Hampstead  in 
Middlesex,  and  elsewhere  —  to  the  amount  of  £2,000 
and  upwards."  ^ 


A  N  action  was  tried  before  Lord  Holt  on  a  wager 
-^-^  whether  a  person  playing  at  backgammon, 
having  stirred  one  of  his  men  without  moving  it 
from  the  point,  was  bound  to  play  it,  and  that  venera- 
ble judge  called  in  the  assistance  of  the  groom  porter 
to  decide  the  controversy.^ 

1  This  case  has  been  often  referred  to  in  law-books,  but  I  have  never 
met  with  so  full  a  statement  of  the  contents  of  the  declaration  as  in  the 
Retrospective  Review,  Vol.  V.  p.  81. 

2  Pope  V.  St.  Leger,  1  Salk.  344." 


164  CURIOSITIES   OF 

IOED  EAYMOND  thus  concludes  the  report  of 
-^  a  celebrated  case :  "  Kote,  that  this  judgment 
was  very  distasteful  to  some  Lords  ;  and  therefore  the 
Lord  Chief  Justice  Holt  was  summoned  to  give  his 
reasons  of  this  judgment  to  the  House  of  Peers,  and 
a  committee  was  appointed  to  hear  and  report  them 
to  the  House,  of  which  the  Earl  of  Eochester  was 
chairman.  But  the  Chief  Justice  Holt  refused  to 
give  them  in  so  extrajudicial  a  manner.  But  he  said 
that  if  the  record  was  removed  before  the  Peers  by- 
error,  so  that  it  came  judicially  before  them,  he  would 
give  his  reasons  very  willingly  ;  but  if  he  gave  them 
in  this  case,  it  would  be  of  very  ill  consequence  to  all 
judges  hereafter,  in  all  cases.  At  which  answer  some 
Lords  were  so  offended  that  they  would  have  com- 
mitted the  Chief  Justice  to  tlie  Tower.  But,  notwith- 
standing, all  their  endeavors  vanished  in  smoke."  ^ 

?1\ 

THE  bar  and  the  public  would  be  astonished,  at 
the  present  day,  to  hear  one  of  the  learned 
judges  of  the  Court  of  Queen's  Bench,  in  giving 
judgment  in  some  important  case,  pursue  a  line  of 
observation  similar  to  that  which  we  find  in  the 
decision  of  that  court  in  a  once  celebrated  case.^ 
Mr.  Justice  Catline,  speaking  of  a  fine,  levied  in 
pursuance  of  the  4  Henry  VII.,  compared  it  to 
"  Janus,  who,  he  said,  was  ISToah,  but  the  Eomans 
occasionally  called  him  Janus,  and  used  to  paint  him 

1  1  Ld.  Raym.  10,  18.  2  Stowe  v.  Lord  Zouch,  Plowden,  353. 


THE   LAW  REPORTERS.  165 

with  two  faces,  —  one  looking  backwards,  in  respect 
that  he  had  seen  the  former  world,  which  was  lost  by 
the  flood,  and  the  other  looking  forwards,  —  for  which 
reason  they  called  him  Janus  bifrons.  And  also  he 
carried  a  key  in  his  hand,  his  power  to  renew  the 
new  world  by  his  generation.  >S'i9  here  the  act  creates, 
as  it  were,  a  flood,  by  which  all  former  rights  before 
the  fine  shall  be  drowned  by  non-claim,  for  non-claim 
is  the  flood,  and  the  fine  begets  a  new  generation, 
which  is  the  new  right,  for  the  fine  makes  a  new 
right  and  is  the  beginning  of  a  new  world,  which 
proceeds  from  the  time  of  the  fine  downwards." 


IN"  Mr.  Bishop's  excellent  book  on  Criminal  Pro- 
cedure ^  is  this  passage  :  — 
"  What  the  lawyers  of  our  day  most  need,  wdiile  de- 
scending from  tlie  clear  heights  of  legal  principle  to 
the  vale  below  on  a  fast-whirling  avalanche  of  de- 
cisions, is  to  be  made  cognizant,  before  it  is  too  late, 
of  the  law  of  the  motion  of  the  avalanche,  in  order  to 
strike  uppermost  when  it  breaks,  instead  of  being 
crushed  and  ground  to  powder  beneath.  Unhappily, 
most  do  not  perceive,  at  present,  that  the  avalanche 
is  ever  to  break,  or  ever  to  stop,  or  ever  to  turn.  If 
Scripture  might  be  quoted  in  a  law-book,  the  author 
would  say  :  '  He  that  hath  an  ear  to  hear,  let  him 
hear.'  This  hint  is  meant  to  be  read  only  by  those 
who  have  ears." 

1  Vol.  II.  §  413. 


166  CURIOSITIES   OF 

IT  is  a  remarkable  thing  that  a  man  should  be  sen- 
tenced "  to  stand  in  the  pillory,  lose  his  ears,  pay 
a  fine  of  £5,000  and  be  perpetually  imprisoned  in  a 
distant  fortress,"  and  become  one  of  the  chief  causes 
of  great  civil  wars,  on  account  of  an  unfortunate 
word  or  two  in  the  last  page  of  a  book  containing 
more  than  a  thousand.  It  was  as  far  down  in  his 
very  index  as  "  W  "  that  the  great  offence  in  Prynne's 
Histrio  Mastyx  was  found,  under  the  head  "  Women 
actors  notorious  whores."  ^  It  was  a  very  odd  compli- 
ment to  Queen  Henrietta  Maria  to  presume  that  these 
words  must  refer  to  her.  The  Histrio  Mastyx  was,  in 
fact,  so  big  and  so  complex  a  thicket  of  confusion, 
that  it  had  been  licensed  without  examination  by  the 
licenser,  who  perhaps  trusted  that  the  world  would 
have  as  little  inclination  to  peruse  it  as  he  had.  The 
calamitous  discovery  of  the  sting  in  the  tail  must 
surely  have  been  made  by  a  Hebrew  or  an  Oriental 
student,  who  mechanically  looked  for  the  commence- 
ment of  the  Histrio  Mastyx  where  he  would  have 
looked  for  that  of  a  Hebrew  Bible.  Successive 
licensers  had  given  the  w^ork  a  sort  of  go-by,  but, 
reversing  the  order  of  the  sibylline  books,  it  became 
always  larger  and  larger,  until  it  found  a  licenser 
who,  with  the  notion  that  he  "  must  put  a  stop  to 
this,"  passed  it  without  examination.  It  got  a  good 
deal  of  reading  immediately  afterwards,  especially 
from  Attorney-General   Noy,  who  asked   the   Star- 

1  3  Howell  state  Trials,  725. 


THE  LAW  REPORTERS.  167 

Chamber  what  it  had  to  do  with  the  immorality  of 
stage-plays  to  exclaim  that  church-music  is  not  the 
noise  of  men,  but  rather  "  a  bleating  of  brute  beasts, 
—  choristers  bellow  the  tenor  as  it  were  oxen,  bark  a 
counterpoint  as  a  kennel  of  dogs,  roar  out  a  treble 
like  a  set  of  bulls,  grunt  out  a  bass  as  it  were  a 
number  of  hogs."  But  Mr.  Attorney  took  surely  a 
more  nice  distinction  when  he  made  a  charge  against 
the  author  in  these  terms  :  "  All  stage-players  he 
terms  them  rogues  :  in  this  he  doth  falsify  the  very 
Act  of  Parliament ;  for  unless  they  go  abroad,  they  are 
not  rogues." 

w 

BY  St.  1  Car.  I.  ch.  1,  no  persons  shall  assemble, 
out  of  their  own  parishes,  for  any  sport  what- 
soever, on  Sunday ;  nor,  in  their  parishes,  shall  use 
any  hull  or  hear  halting,  interludes,  plays,  or  other 
unlawful  exercises  or  pastimes.  "  The  Puritans  hated 
bear-baiting,"  wrote  Macaulay,  "  not  because  it  gave 
pain  to  the  bear,  but  because  it  gave  pleasure  to  the 
spectators."  ^ 

IN"   Chudleigh's  Case  one  of  the  judges  drew    a 
parallel  between  Nebuchadnezzar's  tree  and  the 
Statute  of  Uses.^ 

1  Historjr  of  England,  Vol.  I.  ch.  2.  Even  bear-baiting  was  esteemed 
heathenish  and  unchristian  ;  the  sport  of  it,  not  the  inhumanity,  gave 
offence.     Hume  Histoiy  of  England,  Vol.  I.  ch.  62. 

2  1  Rep.  1346. 


168  CURIOSITIES   OF 

AT  the  commencement  of  the  reign  of  Edward 
VI.  an  act  was  passed  from  which  no  very  favor- 
able inference  can  be  drawn  as  to  the  morals,  habits, 
or  accomplishments  of  the  English  nobility  in  the 
middle  of  the  sixteenth  centmy.  Housebreaking  by 
day  or  by  night,  highway  robbery,  horse-stealing,  and 
the  felonious  taking  of  goods  from  a  church,  having 
been  made  capital  offences,  it  was  provided  "  that  any 
Lord  or  Lords  of  the  Parliament  (to  include  Arch- 
bishops and  Bishops),  and  any  Peer  or  Peers  of  the 
realm  having  place  and  voice  in  Parliament,  being 
convicted  of  any  of  the  said  offences  for  the  first 
time,  upon  his  or  their  request  or  prayer,  tliQugh  he 
cannot  read,  be  allowed  benefit  of  clergy,  and  be  dis- 
charged without  any  burning  in  the  hand,  loss  of  in- 
heritance, or  corruption  of  blood."  It  seems  strange 
to  us,  says  Lord  Campbell,  that  this  privilege  of  peer- 
age  should  have  been  desirable,  or  should  have  been 
conceded ;  but  it  continued  in  force  till  taken  away 
by  an  act  passed  after  the  trial  of  Lord  Cardigan  in 
the  reign  of  Queen  Victoria.^ 


ONE  was  ordered  by  the  judge  of  assize  to  be 
hanged  in  chains ;  the  ■  officer  hung  him  in 
privato  solo  ;  the  owner  brought  trespass ;  and  upon 
not  guilty  the  jury  found  for  the  defendant,  and  the 
court  would  not  grant  a  new  trial,  it  being  done  for 

1  Lord  Campbell  Lives  of  the  Chancellors,  Vol  IL  p.  169. 


THE  LAW  REPORTERS.  169 

convenience  of  place,  and  not  to  affront  the  owner.  ^ 
Holt  Chief  Justice :  "  If  a  man  be  hung  in  chains 
upon  my  land,  after  the  body  is  consumed,  I  shall  have 
gibbet  and  chain."  2. 


ME.  JUSTICE  EEDFIELD  thus  speaks  of  the 
celebrated  case  of  Cornfoot  v.  Eowke:^ 
"  This  case  is  certainly  a  most  remarkable  instance 
of  self-delusion,  brought  about  by  the  severity  of 
one's  own  discriminations.  Lord  Abinger,  who  dis- 
sented from  the  opiiuon  of  the  majority  of  the  judges, 
seems  to  have  readily  comprehended  the  delusion 
under  which  his  brethren  were  laboring,  as  indeed  he 
always  did  all  intricacies  of  thought  and  language." 
And  after  stating  the  opinion  of  the  majority  of  the 
court  in  Cornfoot  v.  Fowke,  he  continues :  "  One  is 
almost  compelled  to  doubt  if  indeed  these  men  *  can 
be  serious.  It  almost  strikes  the  mind  as  matter 
of  mere  badinage.  It  is  scarcely  surpassed,  in  its 
ethical  or  metaphysical  acumen,  by  the  sophistry  of 
the  ancient  schoolmen,  by  which  it  was  attempted  to 
be  proved,  by  syllogistic  reasoning,  that  in  a  foot-race 
Hercules  never  could  overtake  the  lobster."  ^ 

1  Sparks  v.  Spicer,  2  Salk.  648. 

2  1  Ld.  Raym.  738. 

3  6  M.  &  W.  358.     This  case,  though  questioned,  has  never  been  over- 
ruled. 

4  "  These  men  "  were  Baron  Rolfe,  Baron  Alderson,  and  Baron  Parke. 

5  Tlie  learned  judge  probably  had  a  dim  recollection  of  the  story  of 
Achilles  and  the  tortoise. 

8 


170  CURIOSITIES   OF 


I 


N  Fuller's  "  Worthies  "  are  quaint  descriptions  of 
the  "  men  of  the  law  "  :  — 


Coke.  —  His  most  learned  and  laborious  works  on 
the  laws  will  last  to  be  admired  by  the  judicious 
posterity  whilst  Fame  hath  a  trumpet  left  her,  and 
any  breath  to  blow  therein. 

Plowden.  —  How  excellent  a  medley  is  made, 
when  honesty  and  ability  meet  in  a  man  of  his  pro- 
fession ! 

St.  Germain.  —  Eeader,  wipe  thine  eyes,  and  let 
mine  smart,  if  thou  readest  not  what  richly  deserves 
thine  observation  ;  seeing  he  was  a  person  remarkable 
for  his  gentility,  piety,  chastity,  charity,  ability,  in- 
dustry, and  vivacity AVitness  his  book  called 

"  The  Doctor  and  Student,"  where  the  former  vies 
divinity  with  the  law  of  the  latter. 


IN"  Massachusetts  it  is  still  an  open  question, 
whether  if  a  whale  happened  to  be  stranded  on 
the  shore  on  the  Lord's  day,  it  would  be  lawful  to 
work  on  that  day  to  capture  him.^  But  it  is  settled 
that  an  averment  that  the  defendant  hoed  "in  his 
field  "  on  the  Lord's  day  is  supported  by  evidence  that 
on  that  day  he  hoed  "  in  a  field  in  a  part  of  his 
garden."  ^ 

1  Commninvonlth  v.  Sampson,  97  ^Mass.  p.  410. 

2  Commonwealth  v.  Josselyn,  97  Mass.  411. 


THE  LAW  REPORTERS.  171 

IN  Brownlow  Eedivivus,  p.  505,  tliere  is  a  singular 
entry.  The  marginal  note  runs  thus :  "  Count 
per  la  Coachmaker's  Widow  vers  le  Frenchhome. 
Eg  quod  defendens  simul  cum  etc.  in  querentem  in- 
sultum  fecit,  et  ipsam  intoxicavit,  et  ad  lectum  ei 
ignotum  adduxit,  et  illam  super  lectum  istum  de- 
posuit,  et  in  isto  lecto  cum  querenti  contra  volunta- 
tem  suaui  impudenter  recubuit,  et  se  intrusit." 


^ 


EAITHBY'S  Edition  of  Vernon's  Eeports.  There 
is  a  famous  dedication  "  with  a  double  aspect," 
of  this  book  to  Lord  Eldon,  by  the  editor,  who,  after 
obtaining  permission  to  dedicate  it  to  him,  and  before 
the  book  was  published,  seeing  his  intended  patron 
suddenly  turned  out  of  office,  after  some  compliments 
to  departing  greatness,  says,  "  but  your  felicity  is  that 
you  contemplate  in  your  successor  (Lord  Erskine) 
a  person  whose  judgment  will  enable  him  to  appre- 
ciate your  merits,  and  whose  talents  have  procured 
him  a  name  among  the  eminent  lawyers  of  his 
country." 


YESEY  JUNIOE.  "I  knew  this  gentleman 
well,"  says  Lord  Campbell.  "When  near  eighty 
he  was  still  called  '  Vesey  Junior,'  to  distinguish  him 
from  his  father, '  Vesey  Senior.' " 


172  CURIOSITIES   OF 

BEACTON  accounts  for  the  old  rale  of  law,  "  that 
inheritance  may  literally  descend,  but  not  as- 
cend," upon  the  principle  of  gravitation,  —  the  bowl 
rolls  down  the  hill,  but  never  rolls  up.  Littleton 
thus  explains  the  doctrine  of  "  hotchpot "  :  "  It  seeni- 
eth  that  this  word  '  hotch-pot '  is  in  English  a  pud- 
ding ;  for  in  this  pudding  is  Cot  commonly  put  one 
thing  alone,  but  one  thing  with  other  things  together." 


AN  old  law-tract  assumes  to  give  in  this  simple 
language  the  origin  of  the  tenancy  by  the  law, 
or  courtesy  of  England :  "  It  was  called  the  law  of 
England  because  it  was  invented  in  England  on  be- 
half of  poor  gentlemen  who  married  gentlewomen, 
and  had  nothing  wherewith  to  support  themselves 
after  their  wives'  death." 


FEW  cases  are  more  laughable  than  that  which 
describes  the  arithmetical  process  by  which 
Baron  Perrot  arrived  at  the  value  of  certain  conflict- 
ing evidence.  "  Gentlemen  of  the  jury,"  this  judge 
is  reported  to  have  said,  in  summing  up  the  evidence 
in  a  trial  where  the  witnesses  had  sworn  with  noble 
tenacity  of  purpose,  "  there  are  fifteen  witnesses  who 
swear  that  the  watercourse  used  to  flow  in  a  ditch 
on  the  north  side  of  the  hedge.  On  the  other  hand, 
gentlemen,  there  are  nine  witnesses  who  swear  that 


THE  LAW  REPORTERS.  173 

the  watercourse  used  to  flow  on  the  south  side  of  the 
liedge.  Now,  gentlemen,  if  you  subtract  nine  from 
fifteen,  there  remain  six  witnesses  wholly  uncontra- 
dicted ;  and  I  recommend  you  to  give  your  verdict 
for  the  party  who  called  those  six  witnesses." 


A  CERTAIN  earl,  having  estates  iti  Sussex,  Glou- 
cester, and  elsewhere,  gave  instructions  to  his 
solicitor  to  prepare  a  will,  which  was,' inter  alia,  to 
give  to  his  surviving  countess  a  life  estate  in  his 
estates  in  Sussex  and  Gloucester.  The  solicitor  pre- 
pared a  written  will,  in  conformity  with  his  noble 
client's  instructions,  and  laid  it  before,  to  be  settled 
by,  a  no  less  eminent  conveyancer  than  the  late  ac- 
complished and  learned  Mr.  Butler.  In  due  time  the 
will  was  returned  by  him;  and,  having  been  fairly 
copied  out,  was  taken  by  the  solicitor  to  his  client  to 
be  executed,  —  the  solicitor  having  also  with  him  the 
abstract  of  the  will  as  originally  prepared.  This  only, 
and  not  the  fair  copy  brought  to  be  executed,  was 
read ;  and  as  it  represented  that  a  life-estate  had  been 
given  to  the  countess,  in  conformity  with  the  earl's 
intention,  as  well  in  the  Gloucester,  as  the  Sussex 
estate,  he  executed  his  will,  believing  it  to  be  in  ex- 
act conformity  with  the  abstract ;  and  in  that  belief 
he  died.  But  behold  !  it  turned  out  that  by  some  ac- 
cident the  word  "  Gloucester  "  had  been  struck  out  by 
the  great  conveyancer;  and  the  person  making  the 


174  CURIOSITIES   OF 

fair  copy  of  the  will  not  only  omitted  the  word 
"  Gloucester,"  but  changed  the  word  "  counties  "  into 
"  county,"  doubtless  conceiving  that  he  thereby  carried 
out  precisely  the  intention  apparent  in  the  draught ! 
Thus  the  will  was  a  total  blank  as  to  the  Gloucester 
estate,  which  was  worth  nearly  £14,000  a  year !  The 
consternation  of  all  parties,  but  especially  of  countess, 
conveyancer,  and  solicitor,  may  be  imagined ;  and 
two  suits  ^  were  forthwith  instituted  before  the  then 
Vice-Chancellor,  Sir  John  Leach,  —  one  by  the  new 
earl,  for  the  execution  of  the  trusts  as  they  actually 
appeared  on  the  face  of  the  will ;  and  the  other  by  the 
dowager  countess,  praying  that  the  mistaken  omission 
of  her  life-estate  in  the  Gloucester  estate  might  be  rec- 
tified, and  that  the  trust  might  be  executed  as  so 
rectified.  The  Vice-Chancellor  refused  to  admit  the 
tendered  evidence  of  that  mistake,  though,  on  a  re- 
hearing, it  was  shown  by  the  distinguished  convey- 
ancer himself  how  the  purely  clerical  error  had  been 
committed: 2  and  his  refusal  was  sustained  by  the 
unanimous  opinion,  delivered  by  the  late  Lord  Tenter- 
den,  of  the  judges  summoned  to  assist  the  House  of 
Lords ;  which  decided  in  conformity  with  that  view, 
on  a  thoroughly  established  principle  as  to  the  non- 
admissibility  of  such  evidence  for  such  a  purpose.  It 
would  render  all  written  wills  and  instruments  worth- 
less ;  opening  the  door  to  those  endless  frauds  and 

1  The  Earl  of  Newburgh  v.  Countess  Dowager  of  Newburgh,  5  Madd. 
364. 

2  5  INIadd.  367. 


THE  LAW  REPORTERS.  175 

perjuries  which  it  had  been  one  great  object  of  the 
Statute  of  Frauds  to  prevent.  "  To  assume  sucli  a 
jurisdiction,"  said  the  court,  "  would  be  to  repeal  the 
Statute  of  Frauds  in  all  cases  of  failure,  by  mistake 
or  accident,  to  comply  with  it.  To  admit  parol 
evidence,  under  such  circumstances,  of  the  devisor's 
intention,  it  was  the  very  object  of  the  statute  to 
prevent."  ^ 


IN  Stokes  V.  Heron  ^  the  decision  turned  upon  the 
rule  in  Wild's  Case,  6  Coke's  Reports,  166.  Sir 
Edward  Sugden  considered  that  Lord  Plunket  mis- 
apprehended the  nature  of  this  rule.  Lord  Brougham, 
in  delivering  his  opinion  in  the  iTouse  of  Lords,  said  : 
"  Lord  Plunket  was  perfectly  accurate,  as  accurate  as 
it  was  possible  to  be,  in  his  reference  to  the  case  ;  Sir 
Edward  Sugden  thought  him  wrong,  probably  by 
looking  to  the  margin  instead  of  the  case."  Sir 
Edward  Sugden,  in  reference  to  this  observation,  says  : 
"  The  learned  Lord  Brougham  actually  confounded 

1  Miller  v.  Travers,  8  Bing.  254.  This  was  a  case  of  an  error  precisely 
similar  to  that  mentioned  in  the  text,  and  was  attended  with  the  like 
disastrous  results.  A  testator  executed  a  will,  under  the  impression  that 
it  contained  a  devise  of,  amongst  others,  "  his  estates  in  the  comity  of 
Clare,''''  in  accordance  with  his  instructions,  and  with  the  draught  of  the 
will,  which  had  been  sent  to  a  conveyancer,  to  make  certain  alterations 
not  affecting  the  estates  in  question.  By  an  unfortunate  and  undetected 
mistake,  he  had  erased  the  critical  words,  "county  of  Clare",  the  will, 
as  executed,  consequently  omitted  them ;  and  parol  proof  of  these  fs^ts 
was  rejected,  on  the  principle  stated  ni  the  text. 

2  12  Clark  &  Finnelly,  161. 


176  CURIOSITIES   OF 

the  decision  in  Wild's  Case  with  the  resolution,  which 
M'as  probably  a  dictum  invented  by  Lord  Coke  him- 
self "  ;  and  adds,  "  The  only  edition  of  Coke's  Eeports 
that  Sir  Edward  Sugden  ever  had  is  one  in  which 
there  are  no  maroinal  notes." 


ONE  of  the  most  remarkable  instances  on  record 
where  the  degree  of  impunity  to  wliich  counsel 
are  entitled  in  the  exercise  of  their  profession  came 
in  question,  occurred  in  the  trial  of  John  Cook,  one 
of  the  regicides.  He  had  acted  as  solicitor-geneml  for 
the  Commonwealth  during  that  solemn  mockery  of 
justice  when  John  Bradshaw,  serjeant-at-law,  sat  as 
judge  upon  his  king;  and  in  that  capacity  he  had 
prayed  that  speedy  judgment  might  be  pronounced 
against  Charles  I.,  whom  he  styled  "  the  prisoner  at 
the  bar."  When  tried  for  high  treason,  he  adroitly 
attempted  to  excuse  himself  on  the  ground  that  he 
had  no  participation  in  the  king's  death, — not  having 
formed  part  of  the  court  which  condemned  him,  and 
having  merely  discharged,  for  his  fee,  the  duty  of  a 
counsel.  And  to  get  rid  of  the  objection  that  he  had 
demanded  the  judgment  of  the  court  which  tried  the 
king,  he  had  recourse  to  the  quibble,  that  his  words 
ought  to  be  taken  in  mitiore  sensu,  and  that  it  should 
be  presumed  that  perhaps  he  meant  a' judgment  of 
acquittal !  This  is  his  argument :  "  My  Lord,  when 
judgment  is  demanded,  is  it  not  twofold,  of  acquittal 


THE  LAW  REPORTERS.  177 

or  condemnation  ?  If  those  that  then  were  intrusted 
with  the  power  of  judicature,  if  they  did  not  know 
any  law  to  proceed  by  to  take  away  his  Majesty,  then 
I  demanding  their  judgment,  it  doth  not  appear  to  be 
my  judgment ;  and  I  refer  it  to  the  learned  counsel, 
that  comisel  many  times  at  the  assizes  and  other 
courts  have  been  sorry  that  the  verdict  has  been 
given  for  their  clients,  when  they  have  known  the 
right  lay  on  the  other  side,  and  so  I  might  in  this."  i 
And  with  reference  to  his  acts  being  only  those  of  an 
advocate,  and  therefore  innocent,  he  said :  "  My  Lord, 
I  humbly  answer  this,  to  that  which  seems  to  be  the 
most  material  part  in  the  indictment,  that  we  did 
assume  a  power  ;  my  Lords,  I  did  not  assume  a  power. 
I  hope  it  wiU  not  be  said  that  the  counsel  had  any 
power:  eloquentia  in  the  counsel,  judicium  in  the 
judges,  and  Veritas  in  the  witnesses,  25th  of  Acts, 
Tertullus,  that  eloquent  orator,  accused  Paul ;  Paul 
answered  for  himself,  and  it  is  said, '  Festus  being  will- 
ing to  do  the  Jews  a  courtesy,  he  left  Paul  bound ' ; 
it  was  not  the  counsel  that  left  him  bound:  his 
Majesty  was  never  a  prisoner  to  me,  and  I  never  laid 
'  my  hands  upon  him  ;  if  any  witnesses  have  spoken  of 
any  irreverence,  I  must  appeal  to  God  in  that  I  did 
not  in  the  least  manner  carry  myself  undutifully  to 
his  Majesty,  though  one  of  the  witnesses  was  pleased 
to  say  that  I  said  these  words,  'That  there  is  a 
charge  against  the  prisoner  at  the  bar ' ;  it  was  not 

1  5  Howell  State  Trials,  1094. 
8*  L 


178  CURIOSITIES   OF 

said  the  '  prisoner  at  the  bar ' ;  there  was  not  one  dis- 
respective  word  from  me.  There  is  a  case  in  the 
Third  Institute  of  ray  Lord  Coke  :  it  is  to  this  purpose, 
that  one  wilfully  and  knowingly  forswore  himself: 
the  case  was  put  to  inveigle  the  court;  and  though 
the  court  does  injustice  upon  a  false  oath,  it  is  not  in- 
justice at  all  in  the  witness,  it  is  perjury  in  him ;  if 
there  can  be  no  injustice  in  a  witness,  much  less  a 
counsellor  can  be  said  to  have  his  hand  in  the  death 
of  any,  because  he  has  no  power  at  all.  This  must 
needs  follow,  that  if  it  shall  be  conceived  to  be  trea- 
son for  a  counsellor  to  plead  against  his  Majesty,  then 
it  will  be  felony  to  plead  against  any  man  that  is 
condemned  unjustly  for  felony.  The  counsellor  is  to 
make  the  best  of  his  client's  cause,  then  to  leave  it 
to  the  court."  ^  And  again,  "  I  must  leave  it  to  your 
consciences,  whether  you  believe  that  I  had  an  hand 
in  the  king's  death,  when  I  did  write  but  only  that 
which  othere  did  dictate  to  me,  and  when  I  spoke 
only  for  my  fee."  ^ 

Sir  Orlando  Bridgman,  however,  the  Lord  Chief 
Baron,  in  summing  up  the  case  to  the  jury,  disposed 
of  this  ingenious  defence  by  thus  addressing  the 
prisoner:  "Counsel  cannot  be  heard  against  the 
King ;  you  undertake  to  be  counsel  against  the  King 
in  his  own  person  and  in  the  highest  crime ;  if  the 
coujisel  at  the  bar  in  behalf  of  his  client  shoidd 
speak  treason,  he  went  beyond  his  sphere ;  but  you 
did  not  only  speak  (but  acted)  treason.     You  said 

1  5  Howell  State  Trials,  1093.  2  5  Howell  State  Trials,  1098. 


THE  LAW  REPORTERS.  179 

you  used  not  disrespective  words  to  the  King ;  truly, 
for  that  you  hear  what  the  witnesses  have  said  :  you 
pressed  upon  him  ;  you  called  it  a  delay  ;  you  termed 
him  not  the  king,  but  the  prisoner  at  the  bar,  at 
every  word.  You  say  you  did  not  assume  an  author- 
ity ;  it  is  an  assumption  of  authority  if  you  counte- 
nance or  allow  of  their  authority."  ^ 

Cook  was  found  guilty,  and  when  brought  up  for 
judgment  he  made  a  last  desperate  effort  to  get  off 
by  the  same  plea.  Being  asked  what  he  had  to  say 
why  the  court  should  not  pronounce  judgment  upon 
him  to  die,  according  to  law,  he  urged  two  objections 
to  the  indictment,  which  were  overruled,  and  he  then 
said,  "  I  say  it  was  professionally." 

Lord  Chief  Baron :  "  That  hath  been  overruled 
already;  we  have  delivered  our  opinions;  the  pro- 
fession of  a  lawyer  will  not  excuse  them  or  any  of 
them  from  treason,  and  this  hath  been  overruled,  and 
is  overruled  again." 

So  Cook  suffered  the  death  of  a  traitor,  and  was 
hanged. 

MX 

AT  the  common  law  moderate  chastisement  of  a 
servant  might  be  justified ;  and  to  an  action 
of  assanlt,  battery,  and  false  imprisonment,  it  was  a 
good  plea  "that  the  plaintiff,  being  a  lunatic,  the 
defendant  arrested  liim,  confined  him,  and  ivlvvpjjcd 

7    •         »  '2 

mm.  ^ 

1  5  Howell  State  Trials,  1110. 

2  Lord  Campbell  Lives  of  the  Chancellors,  Vol.  VL  p.  39  note. 


180  CURIOSITIES   OF 

IN  the  case  of  Norton  v.  Pielly,^  a  bill  was  filed  by 
a  maiden  lady  residing  at  Leeds,  against  a  Method- 
ist preacher  and  others,  trustees  named  in  a  deed  of 
gift  executed  by  her  to  him,  —  suggesting  that  it  had 
been  obtained  by  undue  means,  —  and  praying  that 
it  might  be  delivered  up  to  be  cancelled.  He  had 
introduced  himseK  to  her  notice  by  a  letter,  in  which 
he  said,  that,  "  although  unknown  to  her  in  the  flesh, 
from  the  report  he  had  of  her  he  made  bold  to  ad- 
dress her  as  a  fellow-member  of  that  consecrated 
body  wherein  the  fulness  of  the  Godhead  dwelt,  and 
that  he  was  coming  among  them  at  Leeds,  for  a  little 
time,  to  preach  the  kingdom  of  God,"  subscribing 
himself  "  her  affectionate  brother  in  the  flesh."  She 
was  prevailed  upon  to  invite  him  to  her  house,  to 
accompany  him  to  London,  to  give  him  large  sums 
of  ready  money,  and  to  grant  him  an  annuity  charged 
on  her  real  estates  in  Yorkshire. 

LoKD  Chancellor  Henley.  —  This  cause,  as  it 
has  been  very  truly  observed,  is  the  first  of  the  kind 
that  ever  came  before  the  court,  and,  I  may  add, 
before  any  court  of  judicature  in  this  kingdom. 
Matters  of  religion  are  happily  very  rarely  the  sub- 
ject of  dispute  in  courts  of  law  or  equity.  [After 
expressing  his  respect  for  dissenters,  he  proceeds :] 
But  very  wide  is  the  difference  between  dissenters 
and  fanatics,  whose  canting  and  whose  doctrines 
have  no  other  tendency  than  to  plunge  their  deluded 

1  2  Eden,  2S6. 


THE  LAW  REPORTERS.  181 

votaries  into  the  very  abyss  of  bigotry,  despair,  and 
enthusiasm.  And  though  even  against  those  un- 
happy and  false  pastors  I  would  not  wish  the  spirit 
of  persecution  to  go  forth,  yet  are  not  these  men  to 
be  discountenanced  and  discouraged  whenever  they 
are  properly  brought  before  courts  of  justice  ?  —  men 
who,  in  the  Apostle's  language,  go  about  and  creep  into 
2^cople's  dwellings,  deluding  weak  women,  —  men  who 
fio  about  and  diffuse  their  rant  and  warm  enthusiastic 
notions,  to  the  destruction  not  only  of  the  temporal 
concerns  of  many  of  the  subjects  of  this  realm,  but 
to  the  endangering  their  eternal  welfare.  And  shall 
it  be  said  that  this  court  cannot  relieve  against  the 
glaring  impositions  of  these  men  ?  that  it  cannot 
relieve  the  weak  and  unwary,  especially  when  the 
impositions  are  exercised  on  those  of  the  weaker  sex  ? 
This  court  is  the  guardian  and  protector  of  the  weak 
and  helpless  of  every  denomination,  and  the  punisher 
of  fraud  and  imposition  in  every  degree.  Here  is  a 
man,  nobody  knows  who  or  what  he  is  ;  his  own 
counsel  have  taken  much  pains  modestly  to  tell  me 
what  he  is  not,  and  depositions  have  been  read  to 
show  that  he  is  not  a  Methodist.  What  is  that  to 
me  ?  But  I  could  easily  have  told  them  what,  by  the 
proofs  in  this  cause  and  his  own  letters,  he  appears 
to  be,  —  a  subtle  sectary,  who  preys  upon  his  deluded 
hearers,  and  robs  them  under  the  mask  of  religion. 
Shall  it  be  said,  in  his  excuse,  that  this  lady  was  as 
great  an  enthusiast  as  himself  ?     It  is  true  that  she 


182  CURIOSITIES   OF 

was  far  gone,  —  but  not  far  enough  for  liis  purpose. 
Thus  he  addressed  her,  "  Your  former  pastor  has,  I  hear, 
excommunicated  you,  hut  put  yourself  in  my  congrega- 
tion, tvhercin  dwells  the  fidncss  of  God."  How  scan- 
dalous, how  blasphemous,  is  this !  In  coining  from 
London  to  Leeds  he  will  not  come  in  a  stage-coach, 
but  must  have  a  post-chaise,  and  live  elegantly  on 
the  road  at  the  expense  of  the  plaintiff,  who  gave 
him  £  50  in  money,  besides  presents  of  liquor,  so 
that  his  own  liot  imagination  was  further  heated  with 
the  spirit  of  brandy.  He  secured  a  part  of  her  for- 
tune by  lighting  up  in  her  breast  the  flame  of  en- 
thusiasm, and  undoubtedly  he  hoped  in  due  time  to 
secure  the  whole  by  kindling  another  flame  of  which 
the  female  breast  is  so  susceptible  ;  for  the  invari- 
able style  of  his  letters  is  "  all  is  to  he  coinpleted  hy 
love  and  union."  Let  it  not  be  told  in  the  streets  of 
London  that  this  preaching  sectary  is  only  defending 
his  just  rights.  I  repeat,  let  not  such  men  be  per- 
secuted, but  many  of  them  deserve  to  be  represented 
in  puppet-shows.  I  have  considered  tliis  cause  not 
merely  as  a  private  matter,  but  of  pubHc  concern- 
ment and  utility.  Bigotry  and  enthusiasm  have 
spread  their  baneful  influence  amongst  us  far  and 
wide,  and  the  unhappy  objects  of  the  contagion  al- 
most daily  increase.  Of  this,  not  only  Bedlam,  but 
most  of  the  private  madhouses,  are  melancholy  and 
striking  proofs.  Let  it  be  decreed  that  the  defendant 
execute  a  release  to  the  plaintiff"  of  this  annuity,  and 


THE  LAW  REPORTERS.  183 

deliver  vip  the  deed  for  securing  it.  I  cannot  con- 
clude without  observing  that  one  of  his  counsel,  with 
some  ingenuity,  tried  to  shelter  him  under  the  denom- 
ination of  "  an  independent  preacher."  I  have  tried 
in  this  decree  to  spoil  his  "  independency." 


LOED  COKE,  in  the  Fourth  Institute,  draws  a 
parallel  between  a  useful  member  of  Parlia- 
ment —  one  possessed  of  all  "  properties  a  parliament 
man  should  have  "  —  and  the  Solomon  of  the  bestial 
world,  to  wit,  the  elephant.  "  Every  member  of  the 
House,"  he  says,  "  being  a  counsellor,  should  have 
three  properties  of  the  elephant :  first,  that  he  hath 
no  gall ;  secondly,  that  he  is  inflexible,  and  cannot 
bow ;  thirdly,  that  he  is  of  a  most  ripe  and  perfect 

memory We  will  add  two  other  properties  of 

the  elephant,  —  the  one,  that  though  tliey  be  Maximae 
virtutis  et  niaximi  intellectus,  of  greatest  strength 
and  understanding,  tamen  gregatim  semper  incedunt, 
yet  they  are  sociable,  and  go  in  companies.  Sociable 
creatures  that  go  in  flocks  or  herds  are  not  hurtful 
as  deer,  sheep  etc.,  but  beasts  that  walk  solely  or 
singularly,  as  bears,  foxes  etc.,  are  dangerous  and 
hurtful.  The  other,  that  the  elephant  is  Philanthro- 
pos,  homini  erranti  viam  ostendit  (a  philanthropist, 
who  showed  the  wanderer  his  road)  and  these  prop- 
erties ought  every  parliament  man  to  have." 


184  CURIOSITIES  OF 

BEOTHER  of  Wiucliester,"  said  Cranmer  to 
Lord  Chancellor  Gardyner,  "you  like  not  any- 
thing new,  unless  you  be  yourself  the  author  thereof." 
"  Your  Grace  wrongeth  me,"  replied  the  inveterate 
Conservative.  "  I  have  never  been  author  yet  of  any 
one  new  thing ;  for  wliich  I  thank  my  God."  ^  "  Such 
a  conservatism,"  says  Sunnier,^  "  is  the  bigotry  of 
science,  of  literature,  of  jurisprudence,  of  religion,  of 
politics.     An  example  will  exhibit  its  character. 

"When  Sir  Samuel  Romilly  proposed  to  abolish 
the  punishment  of  death  for  stealing  a  pocket-hand- 
kerchief, the  Commons  of  England  consulted  certain 
officials  of  the  law,  who  assured  the  House  that  such 
an  innovation  would  endanger  the  whole  criminal  law 
of  the  realm.  And  when  afterwards  this  illustrious 
reformer  and  model  lawyer  (for,  of  all  men  in  the 
history  of  the  English  law,  Romilly  was  most  truly 
the  model  lawyer)  proposed  to  abolish  the  obscene 
punishment  for  high  treason,  requiring  the  offender  to 
be  drawn  and  quartered,  and  his  bowels  to  be  thrown 
into  his  face,  while  his  body  yet  palpitates  with  life,^ 

1  Lord  Campbell  Lives  of  the  Lord  Cliaucellors,  Vol.  IL  p.  181,  5th  ed. 

2  Works,  Vol.  n.  p.  127. 

3  Lord  Coke,  in  detailing  this  barbarous  punishment,  finds  authority 
for  each  cruelty  in  the  Bible.  The  "drawing"  is  justified  by  1  Kings 
ii.  28;  the  "hanging"  by  Esther  ii.  23.  The  "embowelling"  is 
sanctioned  by  the  cii'cumstances  attending  the  fate  of  Judas,  Acts  i.  18. 
For  the  extraction  of  the  criminal's  heart,  he  finds  authority  in  2  Samuel 
xviii.  14,  15.  The  "  beheading"  he  holds  justified  by  2  Samuel  xx.  22. 
And  he  cites  2  Samuel  iv.  11,  12,  as  authorizing  the  practice  of  hang- 
ing up  the  traitor's  disjointed  body  after  execution.  Psalm  cix.,  in 
his  opinion,  sanctions  the  law  of  corruption  of  blood  in  such  cases. 
3  Inst.  211. 


THE  LAW  REPORTERS.  185 

the  Attorney-General  of  the  day,  in  opposing  this 
humane  amendment,  asked,  'Are  tlie  safeguards,  the 
ancient  landmarks,  the  bulwarks,  of  the-  Constitution 
to  be  thus  hastily  removed  ? '  Which  gave  occasion 
for  the  appropriate  exclamation  in  reply,  '  What !  to 
throw  the  bowels  of  an  offender  into  his  face  one  of 
the  safeguards  of  the  British  Constitution  !  I  ought 
to  confess  that  until  this  night  I  was  whoUy  ignorant 
of  this  bulwark.' " 

IiST  the  Case  of  Swans,^  it  is  held  that  cygnets  belong 
equally  to  the  owner  of  the  male  and  the  owner 
of  the  female  swan ;  and  this  is  the  reason  of  the  law  : 
"  The  law  thereof  is  founded  on  a  reason  in  nature ; 
for  the  cock  swan  is  an  emblem  or  representation  of 
an  affectionate  and  true  husband  to  his  wife  above  all 
other  fowls,  —  for  the  cock  swan  holdeth  himself  to  one 
female  only,  and  for  this  cause  nature  has  conferred 
on  him  a  gift  beyond  all  others ;  that  is,  to  die  so 
joyfully  that  he  sings  SAveetly  when  he  dies ;  upon 
w^hich  the  poet  saith :  — 

Dulcia  defecta  modulatur  carmina  lingua 
Cantator,  cygnus,  funeris  ipse  sui  etc." 


LOED  LYNDHUEST  was  in  his  early  days  a 
rcijortcr.     His  name,  however,  appeared  only  on 
one  solitary  blue  cover  of  Taunton's  Eeports. 

1  7  Rep.  156. 


186  CURIOSITIES   OF 

"  TT  Acts  of  Parliament  were,  after  the  old  fashion, 
J-  penned  by  such  only  as  knew  what  the  com- 
mon law  was  before  the  making  of  any  Act  of  Par- 
liament concerning  that  matter,  as  also  how  far  forth 
former  statutes  had  provided  remedies  for  former 
mischiefs  and  defects  discovered  by  experience ;  then 
should  very  few  questions  in  law  arise,  and  the 
learned  should  not  so  often  and  so  much  perplex  their 
heads  to  make  atonement  and  peace  by  construction 
of  law  between  insensible  and  disagreeing  words, 
sentences,  and  provisos  as  they  now  do.^" 


"T'TT'ITH  reference  to  the  manner  in  which  the 
V  V  Year-Books  were  reported,  it  is  to  be  observed 
that  the  whole  cause,  as  well  the  special  pleadings  as 
the  debates  of  the  law  thereupon,  were  transacted  or 
alleged  at  the  bar  j-  and  the  prothonotaries,  ex-officio, 
afterwards  made  up  the  records  in  Latin.  And  the 
court  often  condescended  to  discourse  loith  the  Serjeants 
about  the  discretion  of  their  pleas,  and  the  consequences, 
with  respect  to  their  clients.  And  the  court  did  all  tluy 
could  to  prevent  errors  and  oversights. 


COMPAEE  Elliott  V.  Stone,  12  Cush.  174,  with 
Elliott  V.  Stone,  1  Gray,  571. 

1  Preface  to  2  Rep.  pp.  ix,  x. 


THE  LAW  REPORTERS.  187 

ON  a  previoiLS  page  ^  a  case  is  stated  from  Croke's 
Eeports  in  the  time  of  Elizabetli.  In  Camden's 
"  Eemains,"  ^  the  sentence,  and  the  performance  of  it, 
is  given :  "  A  poor  man  found  a  priest  over-familiar 
with  his  wife,  and  because  he  spake  it  abroad,  and 
could  not  prove  it,  his  priest  sued  him  before  the 
Bishop's  Ofiicial  for  defamation,  where  the  poor  man, 
in  pain  of  cursing,  was  commanded,  that  in  the  parish 
church  he  should  upon  the  Sunday,  at  high  mass, 
stand  up  and  say,  '  Mouth,  thou  liest '  :  whereupon, 
for  fidiilling  of  his  penance,  up  was  the  poor  soul  set 
in  a  pew,  that  the  people  might  wonder  at  him  and 
hear  what  he  said;  and  there  all  aloud,  when  he 
had  rehearsed  what  he  had  reported  of  the  priest, 
then  he  set  his  hands  on  his  mouth,  and  said,  'Mouth, 
thou  liest':  and  by  and  by  thereupon,  he  set  his 
hands  upon  both  his  eyes,  and  said :  '  But  eyes,' 
quoth  he,  '  by  the  mass  ye  lie  not  a  whit.' "    . 


NELSON'S  LUTWYCHE.     We  give  two  speci- 
mens of  the  style  in  wliich  these  valuable  re- 
ports were  edited. 

"  This  is  only  a  hearsay  report,  which  the  Sergeant 
had  ex  relatione  of  his  brother  Girdler,  which,  for 
aught  I  know,  may  be  as  good  authority  as  Justice 
Warburton's  old  manuscript;  only  I  must  observe, 
that,  if  I  tell  a  long   and  impertinent   story   what 

1  Ante,  p.  12.  2  Page  304,  ed.  1870. 


188  CURIOSITIES  OF 

another  man  told  me,  it  will  not  be  allowed  as 
evidence  to  a  common  jury,  but  it  may  serve  to  pro- 
long the  time,  and  so  may  this  to  enlarge  the  book." 

"  The  Sergeant  tells  us.  This  case  is  reported  by 
Sir  J.  Savile,  and  that  the  record  was  now  printed  to 
correct  a  mistake  in  that  report,  where  't  is  said  there 
were  two  disturbances  alleged  etc.  but  certainly  this 
could  not  be  any  reason  for  publishing  this  record, 
for  after  one  hundred  and  fifteen  years,  when  this 
case  happened,  it  cannot  be  material  to  inform  the 
world  that  there  was  but  one  disturbance  set  forth  in 
that  declaration ;  there  must  be  some  other  reason 
for  it,  and  probably  it  was  to  acquaint  the  reader  (to 
use  the  common  expression)  how  long  the  Lutwyches 
have  followed  the  law ;  for  I  found  John  Lutwyche 
was  attorney  on  the  record  for  the  defendants,  and  so 
he  was  in  9  Jac.  Winch's  Entries,  fol.  9." 


The  Loed  Sturton  and  Lord  Mordant. 

THEY  were  brought  to  the  bar  now,  being  held 
for  a  contempt  to  the  King  for  not  coming  to 
the  Parliament  by  prorogation  5th  November  when 
the  Gunpowder  Treason  was  intended.  And  it  was 
grandly  suspected  that  they  knew  of  the  plot,  because 
they  were  papists,  and  their  excuses  very  frivolous. 
And  Sturton  was  fined  to  six  thousand  marks,  and 
Mordant  to  one  thousand  marks.^ 

1  Nov,  102. 


THE  LAW  REPORTERS.  189 

IN  32  Eliz.  Eeginpe,  "  Jane "  was  agreed,  by  the 
Court  of  King's  Bench,  to  be  all  one  with  "  Joan." 

In  "  Lib.  Assis."  26,  fol.  7,  "  Julian  "  and  "  Gilian  " 
are  made  two  distinct  names  ;  "  I  doubt  not  but  upon 
some  good  ground,"  says  Brooke. 

"  Some  will  have  the.  name  '  Mabel '  to  be  a  con- 
traction of  the  Italians  from  Mabella,  that  is,  INIy 
fair  daughter,  or  maid.  But  whereas  it  is  written  in 
deeds  Amabilia  and  Mabilia,  I  think  it  cometh  from 
Amabilis,  that  is,  Loveable,  or  Lovely,  and  that  the 
names  are  the  same."  ^ 


THE  defendant  spoke  these  scandalous  words  of 
the  plaintiff:  "He  hath  got  M  N.  with  chHd." 
Motion  to  arrest  the  judgment  for  this  that  these 
words  are  not  actionable.  But  per  Glyn  Chief 
Justice:  The  words  are  actionable  because  it  does 
not  lie  in  the  mouth  of  the  defendant  to  say  that 
the  plaintiff  and  M.  N.  were  husband  and  wife.^ 


SHOWER,  after  reporting  a  long  argument  of  his 
own,  says,  "  At  which  Dolbin  Justice  was  angry, 
and  said  no  man  would  have  made  such  a  motion  but 
myself,  and  wondered  that  I  should  have  made  such 
a  motion."  ^ 

1  2  Roll.  Ab.  135.  8  Clerk  v.  Andrews,  1  Shower,  p.  12. 

2  2  Siderfin,  17. 


190  CURIOSITIES   OF 

"  "TXT"HEN  I  was  a  nisi  prius  reporter,"  says  Lord 
VV  Campbell,  "I  had  a  drawer  marked  'Bad 
Law '  into  v/hich  I  threw  all  the  cases  which  seemed 
to  me  improperly  ruled.  I  was  flattered  to  hear  Sir 
James  Mansfield  C.  J.  say,  'Whoever  reads  Campbell's 
Eeports  must  be  astonished  to  find  how  uniforndy 
Lord  Ellenborough's  decisions  were  right.'  My  re- 
jected cases,  which  I  had  kept  as  a  curiosity,  —  not 
maliciously,  —  were  all  burnt  in  the  great  fire  in  the 
Temple  when  I  was  Attorney-General."  ^ 


IN  October  1660,  Chief  Baron  Bridgman  presided  at 
the  trial  of  the  regicides.  We  find  handed  down 
to  us  some  of  the  flowers  of  his  eloquence,  in  char- 
ging the  grand  jury  on  this  occasion.  Having  ex- 
plained to  them  that  the  treason  consisted  "in 
imagining  and  compassing  the  King's  death,"  and 
stated  that  the  prisoners  had  gone  farther,  and  "  exe- 
cuted him  on  a  scaffold  in  front  of  his  own  palace," 
he  said :  "  Certainly  this  is  so  much  beyond  the  ima- 
gination and  compassing,  as  it  is  not  only  laying  the 
cockatrice's  egg,  but  brooding  upon  it  till  it  hath 
brought  forth  a  serpent."  After  stating  that  the 
crown  of  England  is  an  imperial  crown,  he  asks, 
"  What  is  an  imperial  crown  ?  It  is  that  which,  as  to 
the  coercive  part,  is  subject  to  no  man  under  God. 
The  King  of  Poland  has  a  crown ;  but  what  is  it  ? 

1  Lives  of  the  Chancellors,  Vol.  V.  p.  376  note,  5th  ed. 


THE  LAW  REPORTERS  191 

At  his  coronation  he  is  conditioned  with  the  people, 
that  if  he  shall  not  govern  them  according  to  such 
and  such  rules,  they  shall  be  freed  from  their  homage 
and  allegiance  ;  but  the  crown  of  England  is,  and 
always  was,  an  imperial  crown,  —  not  subject  to  any 
•human  tribunal  or  judicature  wliatever.  As  to  the 
person  of  the  King,  he  is  not  to  be  touched.  Touch 
not  mine  anointed.  It  is  true  (blessed  be  God  I )  we 
have  as  great  liberties  as  any  people  have  in  Christen- 
dom, but  let  us  owe  them  where  they  are  due ;  we 
have  them  by  the  concession  of  our"  Princes.  Our 
Princes  have  granted  them,  and  the  King  now  grants 
them."  Having  stirred  up  their  indignation  by  a 
rhetorical  description  of  the  King's  death,  he  thus 
concludes :  "  No  story  that  ever  was  —  I  do  not 
think  tliat  any  romance  —  any  fabulous  tragedy  — 
can  produce  the  like.  You  are  now  to  inquire  of 
blood  —  of  royal  blood  —  of  sacred  blood  —  blood  like 
that  of  the  saints  under  the  altar,  crying,  Quousque, 
Domine.  This  blood  cries  for  vengeance ;  and  it  will 
not  be  appeased  without  a  bloody  sacrifice.  He  that 
conceals  the  guilt  of  blood  takes  it  upon  himself,  — 
wilfully,  knowingly  takes  it  upon  liimself;  and  we 
know  that  when  tlie  Jews  said.  Let  his  blood  be  on  us 
and  our  seed,  it  continued  and  continues  to  bring 
a  curse  unto  them  and  their  posterity  to  this  day."^ 
We  should  think  it  rather  strange  if  a  judge  were 
to  tell  the  jury  that  a  capital  charge  was  so  clea:'/ 

1  5  Howell  State  Trials,  989 -rr  I. 


192  CURIOSITIES  OF 

proved  that  they  ought  to  find  a  verdict  of  guilty 
without  leaving  their  seats;  but  even  fair  judges  were 
not  so  squeamish  in  those  days,  and  the  case  was  made 
out  in  law,  and,  in  fact,  beyond  all  possibility  of  doubt. 
He  checked  the  applause  wliich  burst  out  at  the  ver- 
dict, stating  that  it  was  more  fitting  for  a  stage  play 
than  a  court  of  justice.^ 


SWINBURNE  mentions  a  bequest  of  a  legacy  to 
a  person,  on  condition  of  his  drinking  up  all  the 
water  in  the  sea ;  and  it  was  held,  that,  as  this  con- 
dition could  not  be  performed,  it  was  void.^  The 
condition  to  go  to  Eome  in  a  day,  wliich  Blackstone 
mentions  in  his  Commentaries  as  void,  as  impossible 
to  be  performed,  may  be  good,  since  railroads  are  in- 
troduced on  the  Continent. 


AN  adulterer  takes  away  another  man's  wife, 
and  puts  her  in  new  clothes  :  the  husband  may 
take  the  wife  with  her  clothes ;  for  it  is  as  it  were  a 
gift  of  the  said  apparel  unto  her.  Besides,  the  more 
worthy  thing  draws  to  it  tilings  of  less  worthiness.^ 
Qurere  which  is  the  more  worthy,  —  the  wife  or  the 
"  new  clothes  "  ? 

1  5  Howell  state  Trials,  1024, 1208.    Lord  Campbell  Lives  of  the  Chiui- 
cellors,  Vol.  IV.  pp.  142,  143,  5th  ed. 

2  Part  4,  sec  6,  art.  2. 
s  Finch's  Law,  22,  23. 


THE  LAW  REPORTERS.  193 

ALL  crimes  have  their  conception  in  a  corrupt 
intent,  and  have  their  consummation  and  issu- 
ing in  some  particular  fact ;  wliich  tliough  it  be  not 
the  fact  at  which  the  intention  of  the  malefactor 
levelled,  yet  the  law  givetli  him  no  advantage  of 
that  error  if  another  particular  ensue  of  as  high  a 
nature. 

Therefore  if  an  impoisoned  apple  be  laid  in  a  place 
to  poison  L  S.,  and  I.  D.  cometli  by  chance  and  eateth 
it,  this  is  murder  in  the  principal  that  is  actor  ;  and 
yet  the  malice  in  individuo  was  not  against  I.  D. 

So  if  a  thief  find  the  door  open,  and  come  in  the 
night  and  rob  a  house,  and  be  taken  with  the  manner, 
and  break  a  door  to  escape,  this  is  burglary ;  yet  the 
breaking  of  the  door  was  without  any  felonious  in- 
tent ;  but  it  is  one  entire  act. 

So  if  a  caliver  be  discharged  with  a  murderous 
intent  at  I.  S.  and  the  piece  break  and  strike  into  the 
eye  of  him  that  dischargeth  it  and  killeth  him,  he  is 
felo  de  se ;  and  yet  his  intention  was  not  to  hurt  him- 
self, for  felonia  de  se  and  murder  are  crimina  paris 
gradus.  For  if  a  man  persuade  another  to  kill  him- 
self, and  be  present  when  he  doth  so,  he  is  a  mur- 
derer. 

But  when  a  man  is  author  and  mover  to  another  to 
commit  an  unlawful  act,  then  he  shall  not  excuse  him- 
self by  circumstance  not  pursued. 

If  a  man  command  I.  S.  to  rob  L  D.  on  Shooters 
Hill,  and  he  dotli  it  on  Gads  Hill ;  or  to  rob  him  such 


194  CURIOSITIES   OF 

a  day,  and  he  doth  it  the  next  day ;  or  to  kill  I,  D. 

and  he  doth  it  not  himself  hut  procureth  I.  B.  to  do  it ; 
or  to  kill  him  by  poison,  and  he  doth  it  by  violence ; 
—  in  all  these  cases,  notwithstanding  the  fact  be  not 
executed  in  circumstance,  yet  he  is  accessory  never- 
theless. 

But  if  it  be  to  kill  I.  S.  and  he  killeth  I.  D.,  mis- 
taking him  for  I.  S.,  then  the  acts  are  distinct  in  sub- 
stance, and  he  is  not  accessory. 

And  be  it  that  the  acts  be  of  differing  degrees,  and 
yet  of  a  kind ;  as  if  a  man  bid  I.  S.  to  pilfer  away 
such  a  thing  out  of  a  house,  and  precisely  restrain 
him  to  do  it  some  time  when  he  is  gotten  in  without 
breaking  of  the  house,  and  yet  he  breaketh  the  house  ; 
yet  he  is  accessory  to  the  burglary  :  for  a  man  cannot 
condition  with  an  unlawful  act,  but  he  must  at  his 
peril  take  heed  how  he  putteth  himself  into  another 
man's  hands. 

But  if  a  man  bid  one  rob  I.  S.  as  he  goeth  to  Stur- 
bridge  Fair,  and  he  rob  him  in  his  house,  the  variance 
seemeth  to  be  of  substance,  and  he  is  not  accessory.^ 


BEACTOiSr,  describing  the  judges  of  his  time, 
speaks  the  language  likely  to  come  from  a  dis- 
appointed practitioner :  he  calls  them  "  Incipientes  et 
minus  docti,  qui  cathedram  judicandi  ascendunt  ante- 
quam  leges  dedicerint." 

1  Bacon  Maxims,  Eog.  XV.,  XV\  ,  citing  Plowden,  474,  475. 


THE  LAW  REPORTERS,  195 

IT  is  actionable  to  call  a  counsellor  "  a  daffodown- 
dilly,"  if  there  be  an  averment  that  the  words 
signify  an  ambidexter ;  ^  or  to  say  of  an  attorney, 
that  "  he  hath  no  more  law  than  Master  Cheyny's 
bull,"  even  although  Master  Cheyny  actually  have 
no  bull ;  for  if  that  be  the  case,  as  Keeling  Chief 
Justice  observed,  "  the  scandal  is  the  greater."  ^  And 
it  is  quite  clear  that  to  say  that  a  lawyer  has  "no 
more  law  than  a  goose"  is  actionable;  and  the  re- 
porter adds  a  quaere,  whether  it  be  not  actionable  to 
say  a  lawyer  "  hath  no  more  law  than  the  man  in  the 
moon  " !  ^ 


A  says  to  B,  "  One  of  us  is  perjured."  B.  says  to 
A,  "  It  is  not  I."  And  A.  says,  "  I  am  sure 
it  is  not  I."  B.  shall  have  an  action  for  these  words, 
for  the  subsequent  words  show  apparently  that  he 
intends  him.* 


SIR  JOHN  FINEUX,  some  time  Chief  Justice  of 
the  King's  Bench,  was  often  heard  to  say,  "  Who- 
so taketh  from  a  justice  the  order  of  his  discretion, 
taketh  surely  from  him  more  than  half  his  office."  ^ 

1  1  Roll.  Ab.  55.  pi.  17. 

2  1  S^dcrfiii,  327.     2  Keble,  202. 

3  1  Siderfin,  424. 

4  Coe  V.  Chambers,  1  Roll.  Ab.  75. 

5  Camden's  "  Remains,"  p.  307,  ed.  1870. 


196  CURIOSITIES  OF 

CUNNINGHAM  writes  of  the  "many  reports 
which  liave  been  published,"  that  "some  of 
them,  as  Justice  Shelley  said,  might  be  compared  to 
Banbury  cheeses,  whose  superfluities  being  pared 
away,  there  would  not  be  enough  left  to  bait  what 
Lord  Hale  called  '  the  mousetrap  of  the  law ' ;  yet 
probably  the  meanest  of  them  may,  like  the  little 
birds,  add  something  towards  building  the  eagle's 
nest."  1 


IN  the  perusal  of  a  very  solid  book  on  ecclesiastical 
law,  including  the  progress  of  the  ecclesiastical 
differences  in  Ireland,  written  by  a  native  of  that 
country,  after  a  good  deal  of  tedious  and  vexatious 
matter,  the  reader's  complacency  is  restored  by  an 
artless  statement  how  an  eminent  person  "abandoned 
the  errors  of  the  Church  of  Eome,  and  adopted  those 
of  the  Church  of  England." 


"T3UT  particularly,"  says  Sheppard,  "if  an  idiot 
-L'  have  so  much  knowledge  that  he  can  read  or 
learn  to  read  by  instruction  and  information  of  others, 
or  can  measure  an  ell  of  cloth,  or  name  the  days  of  the 
week,  or  beget  a  cliild,  son  or  daughter,  or  such  like, 
whereby  it  may  appear  that  he  has  some  light  of 
reason,  then  he  is  no  idiot  naturally."  ^ 

1  Cunningham,  Preface,  p.  ix,  A.  D.  1766. 
J*  Sheppard  Gr.  Ab.  tit.  Idiot. 


THE  LAW  REPORTERS.  197 

IT  is  established  that  a  subsequent  will  made  under 
the  impulse  of  a  mistaken  notion  of  a  fact,  and 
referring  to  the  fact  as  having  actually  happened,  and 
as  being  the  foundation  of  the  present  testamentary 
act,  will  not  revoke  a  former  will ;  ^  according  to  the 
case,  Pater  credens  filium  suum  esse  mortuum,  al- 
teram instituit  hseredem ;  filio  domi  redeunte,  hujus 
institutionis  vis  est  nulla.^ 


IT  was  a  question  whether  a  rape  could  be  com- 
mitted on  the  body  of  a  child  of  the  age  of  six 
or  seven  years ;  and  a  person  being  indicted  for  the 
rape  of  a  girl  of  seven  years  old,  although  he  was 
found  guilty,  the  court  doubted  whether  a  child  of 
that  age  could  be  ravished ;  and  it  was  said,  if  she 
had  been  nine  years  old  she  might, /or  at  that  age  she 
may  he  endowed.^ 

''IS 

THE  only  judicial  opinion  of  Lord  Fortescue 
which  ever  made  a  deep  impression  on  the 
American  side  of  the  Atlantic  is  one  involving  the 
difficult  question  of  domicile,  and  is  thus  reported  :  — 
"A  man's  bed  stood  so  that  he  lodged  in  two 
parishes  at  once.  The  question  was  wdiere  his  settle- 
ment should  be.  Mr.  Justice  Fortescue  said,  where 
his  head  lay ;  as  being  the  more  noble  part." 

1  Campbell  v.  Frsncli,  3  Ves.  321. 

2  Cicero  De  Oratore,  lib.  I.  ch.  38,  quoted  in  1  Saund.  280  d,  6th  ed. 
a  Dyer,  304. 


198  CURIOSITIES   OF 

BOYDELL'S  Illustrations  of  Shakespeare.  This 
work  was  the  subject  of  litigation  in  the  cele- 
brated case  of  Boy  dell  v.  Drummond.^  This  is  a 
leading  case  and  familiar  to  the  profession.  To  our 
non-professional  readers,  at  least  to  those  who  own 
the  volumes,  a  .brief  statement  may  be  interesting. 
The  Statute  of  Frauds  enacts  that  no  action  shall 
be  brought  upon  "  any  agreement  that  is  not  to  be 
performed  within  the  space  of  one  year  from  the 
making  thereof,"  unless  there  is  some  note  or  memo- 
randum in  writing,  signed  by  the  party  to  be  charged. 
In  this  case  the  plaintiff  proposed  to  publish  a  mag- 
nificent edition  of  Shakespeare,  illustrated  by  seventy- 
two  engravings,  which  were  to  come  out  in  numbers, 
at  three  guineas  per  number,  two  of  which  were  to 
be  paid  for  in  advance ;  each  number  was  to  contain 
four  engravings  ;  "  one  number  at  least  was  to  he  j^ub- 
lished  annually,  and  the  proprietors  were  confident 
that  they  should  be  able  to  produce  two  numbers  in 
the  course  of  every  year."  These  proposals  were 
printed  in  a  |;rc>S2X'C!!?<s,  and  lay  in  the  plaintiff's  shop. 
The  plaintiff  also  kept  a  book,  which  liad  for  its  title, 
"  Shakespeare  subscribers,  their  signatures  " ;  but  did 
not  refer  to  the  prospectus.  The  defendant,  determin- 
ing to  become  a  subscriber  to  the  work,  signed  his 
name  in  the  book  containing  the  list  of  subscribers, 
but  afterwards  refused  to  take  it;  though  he  had 
received  and  paid  for  some  few  numbers,  this  action 

1  11  East,  142,  A.  D.  1809. 


THE  LAW  REPORTERS.  199 

was  brought  to  compel  liim  to  complete  his  contract. 
The  court  decided  that  the  agreement  was  not  to  be 
performed  within  the  space  of  a  year  from  the  making 
thereof;  that  it  was  therefore  within  the  Statute. 


KOYAL  proclamations  were  guarded,  even  from 
imitation,  with  great  jealousy,  by  the  Star- 
Chamber.  In  the  twenty-second  year  of  the  reign  of 
Henry  VIII.,  a  knight,  happening  to  be  an  executor, 
caused  notice  to  be  published  in  several  towns,  that 
all  persons  to  whom  his  testator  was  indebted,  com- 
ing to  him,  should  be  paid.  For  this  offence  he  was 
fined,  and  committed  to  the  Fleet. 


The  first  American  Law  Eeports. 

KIRBY'S  EEPOETS  was  published  in  1789.1 
The  Preface  is  not  dated.  The  Preface  to 
Hopkinson's  Eeports  is  dated  February  1789.  The 
volume  is  scarce.  The  full  title  is  :  "  Judgements  in 
the  Admiralty  of  Pennsylvania,  in  Four  Suits  brought 
as  for  Maritime  Hypothecations.  Also,  the  Case  of 
Silas  Talbot  against  the  Brigs  Achilles,  Patty,  and  Hi- 
bernia,  and  of  the  Owners  of  the  Hibernia  against  their 
Captain,  John  Angus.  "With  an  Appendix  containing 
the  testimony  exhibited  in  the  Admiralty  in  those 
Causes.    The  Hon.  Francis  Hopkinson,  Judge.    Phila- 

1  See  the  Preface  to  the  first  vokime  of  Connecticut  Reports,  p.  xxviii. 


200  CURIOSITIES   OF 

delphia :  Printed  by  T.  Dobson  and  T.  Lang  in  Second 
Street.     MDCCLXXXIX."     Svo.     pp.  131." 


IN  Hale's  Pleas  of  the  Crown  it  is  laid  down  that 
the  corpus  delicti  must  be  expressly  proved  in 
criminal  cases.  In  a  recent  crown  case  reserved/  it 
was  argued,  on  the  authority  of  this  passage,  that  the 
corpus  delicti  must  be  proved  in  every  criminal  case, 
and  that  there  was  no  difference  in  the  application 
of  the  rule.  But  it  was  thus  answered  by  that 
acute  judge,  Mr.  Justice  Maule :  "  If  a  man  go  into 
the  London  Docks  sober  without  means  of  getting 
drunk,  and  comes  out  of  one  of  the  cellars  very 
drunk,  wherein  are  a  million  gallons  of  wine,  I  think 
that  would  be  reasonable  evidence  that  he  had  stolen 
some  of  the  wine  in  that  cellar,  though  you  could  not 
prove  that  any  wine  was  stolen  or  any  wine  was 
missed." 

?«\ 

^TT"ILBUE  V.  HUBBAPtD.2  This  was  an  action 
VV  brought  to  recover  damages  for  the  defend- 
ant's dog  killing  and  wounding  the  plaintiff's  sheep. 
By  the  court,  Balcom  P.  J. :  "  The  most  material 
question  in  this  case  is  whether  the  defendant's  dog 
was  one  of  the  two  that  wounded  and  killed  the 
plaintiff's  sheep.  Tlie  sheep  were  wounded  and 
killed  in  the  night  of  the  8th  of  August  1860 ;  and 

i  Regina  v.  Burton,  Dearsly  C.  C  282.  2  35  Barb.  303. 


THE  LAW  REPORTERS.  201 

there  is  some  evidence  that  the  defendant's  dog  was 
not  at  home  that  night,  and  that  it  was  a  '  sheep-kill- 
in"  do2.'  Some  of  the  witnesses  said  the  defendant's 
dog  had  a  '  very  coarse  voice ' ;  that  they  could  iden- 
tify it  by  its  bark,  and  heard  the  barking  of  a  dog 
in  the  lot  wdiere  the  sheep  were  the  night  they  were 
wounded  and  killed,  wdiich  they  thought  w^as  that  of 
the  defendant's  dog.  But  none  of  them  saw  the  dog 
that  night  in  such  lot.  I  think  it  possible  for  persons 
to  identify  a  dog  by  merely  hearing  it  bark,  without 
seeing  it.  Some  persons  have  such  peciLliar  voices 
they  can  be  identified  by  acquaintances  who  hear 
them  talk,  without  seeing  them ;  and  it  seems  reason- 
able that  some  dogs  may  bark  in  such  a  manner  and 
have  such  smgular  voices  that  they  can  be  identified 
in  the  night  time,  by  persons  who  know  them  well, 
by  merely  hearing  them  bark,  without  seeing  them." 


IN  the  reign  of  Charles  II.,  Walcot  was  executed 
for  the  Eye  House  Plot ;  and  twelve  years  after 
his  execution  a  writ  of  error  was  brought,  and  his 
attainder  reversed,  because  in  the  record  of  his  sen- 
tence it  had  not  been  stated  that  his  entrails  should 
be  burnt  %cliile  lie  was  alive. 

A  prisoner  was  convicted  of  a  capital  felony  and 
was  sentenced  to  be  punished  by  transportation.  On 
error  the  judgment  was  reversed  because  he  was  not 
sentenced  to  be  hanged,  and  he  was  discharged. 

9* 


202  CURIOSITIES   OF 

FENN",  who  was  a  brewer,  brought  an  action  against 
Dixe  for  saying  to  some  of  his  customers,  "  I 
will  give  my  mare  a  peck  of  malt  and  lead  her  to  the 
water,  and  let  her  drink,  and  she  shall  p — s  as  good 
beer  as  any  as  Tom  Fenn  brews."  EoUe  argued  that 
the  words  are  actionable ;  and  he  said  that  it  had 
been  adjudged  here,  that  if  one  say  of  a  brewer  that 
he  brews  naughty  beer,  without  more  saying,  these 
words  are  actionable,  without  any  special  damage 
alleged.  But  the  whole  court  was  against  him 
(Croke  only  absent)  that  the  words  of  themselves 
were  not  actionable,  without  any  special  damage 
alleged.  And  Berkeley  said  that  the  words  are  only 
comparative,  and  altogether  impossible  also.  And  he 
said  that  it  had  been  adjudged  that  where  one  says 
of  a  lawyer,  that  he  had  as  much  law  as  a  monkey, 
that  the  words  were  not  actionable,  because  he  hath 
as  much  law  and  more  also.  But  if  he  had  said  that 
he  hath  no  more  law  than  a  monkey,  those  words 
were  actionable.     And  it  was  adjourned. 


THE  first  misprision  of  treason  created  by  the 
Succession  Act  passed  in  the  reign  of  King 
Henry  VIII.  is  made  to  consist  in  words,  without 
writing,  or  exterior  act  or  deed,  whereby  anything 
is  published,  divulged,  or  uttered  to  the  peril  of  the 
King,  slander  or  prejudice  of  the  marriage  with  Anne 

1  Jlarch,  pi.  93.     1  Roll.  Ab.  58.    Sir  W.  Jones,  444. 


THE  LAW  REPORTERS.  203 

Boleyn,  or  the  slander  or  disinherison  of  tlie  royal 
issue.  The  clause  on  this  subject  affords  an  illustra- 
tion how,  by  judicial  interpretation,  a  minor  offence 
may  have  its  complexion  darkened. 

Two  monks  named  Hale  and  Feron  were  con- 
victed in  the  year  1535  of  treason,  on  account  of 
a  conversation  which  they  Avere  said  to  have  had 
together,  when  walldng  "  to  and  fro."  The  indict- 
ment alleged  what  Hale  said  to  Feron.  Neverthe- 
less this  "  slander  of  the  King's  marriage  "  was  only 
in  words,  and  these  were  not  made  treason  until  a 
statute  in  the  twenty-sixth  year  of  the  King.  In 
order  to  remove  this  difficulty,  it  was  alleged,  in  tlie 
indictment,  that  Hale  siwke  the  words  with  a  view  of 
exciting  Feron  to  ivriie  against  the  King,  who  sul)- 
sequently  wrote  down  in  Latin  the  words  which  Hale 
had  spoken  in  English.  Here  then,  it  was  construed, 
.  there  was  a  slander  of  the  King's  marriage  in  writing, 
and  that  words  might  interpretatively  become  tvrit- 
ings,  although  in  a  different  language,  and  according 
to  another  man's  version. 


AT  one  time  there  were  at  the  bar  of  the  Court 
of  Chancery  particular  barristers  who  acquired 
reputation  by  their  cunning  in  drawing  bills.  One  of 
these  being  found  too  subtle,  an  order  was  made  by 
Lord  Keeper  Egerton  that  no  bills  signed  by  him 
should  be  put  upon  the  file.^ 

1  Carv,  38. 


204  CURIOSITIES   OF 

ACUEIOUS  case  came  before  Lord  Chancellor 
King  showing  that  towards  the  middle  of  the 
last  century  the  custom  of  marrying  infants  of  tender  ' 
years,  which  had  formerly  been  very  common,  still 
prevailed  in  England.  One  of  several  guardians  to 
an  heiress  took  her  from  a  boarding-school  when  she 
was  only  nine  years  old,  and  married  her  to  his  own 
son,  who  had  no  estate.  The  Lord  Chancellor,  on 
motion,  ordered  this  guardian  to  bring  into  court  the 
infant  wdiom  he  had  married  to  his  son,  and  that  he, 
the  son,  and  the  infant  should  attend.  All  attending, 
the  counsel  for  the  application  pleaded,  "  that  this 
guardian  having,  in  so  perfidious  a  manner,  broken  his 
trust,  and  married  his  ward  to  his  own  son,  who  was 
worth  nothing,  the  Court  of  Chancery,  the  guardian  of 
all  infants  with  the  superintendency  and  cognizance 
of  all  trusts,  ought  to  commit  him,  and  not  suffer  the 
girl,  now  but  nine  years  old,  to  continue  to  cohabit 
with  her  husband,  who  ought  not  to  be  indulged  with 
opportunities  of  inveigling  her,  and  preventing  her 
from  disagreeing  to  the  marriage  when  she  shoidd 
come  to  the  age  of  twelve  years,  which  it  would  be 
for  her  interest  to  do." 

Lord  Chancellor.  —  The  infant  girl  never  having 
been  under  the  care  of  the  court,  nor  committed  by 
the  court  to  the  care  of  this  guardian,  I  do  not  think 
he  can  be  considered  guilty  of  a  contempt  of  court ; 
but  then  it  is  a  very  ill  thing  in  him  to  marry  this 
child  to  his  own  son,  and  he  is  punishable  by  an  in- 


■THE  LAW  REPORTERS.  205 

formation.  I  will  therefore  have  him  bound  over 
with  sureties  to  appear  to  answer  an  information  to 
he  filed  against  him  by  the  Attorney-General.  As  for 
the  child,  let  her  be  handed  over  by  this  knavish 
guardian  to  the  other  guardian  named  in  her  father's 
will,  who,  it  is  to  be  hoped,  will  take  proper  care  of 
her  and  do  what  is  for  her  advantage  in  advising  her 
to  confirm  or  to  renounce  the  marriage.  ^ 


IN  Eastell's  Entries,  26,  there  is  an  amusing  prece- 
dent of  a  declaration  in  an  action  on  the  case 
against  a  barber  for  shaving  the  beard  "  inartificially  "  : 
'E.  S.  nuper  de  N,  attach,  fuit  ad  respondendum 
H.  B.  de  placito,  quod  cum  idem  R.  ad  barbam  ipsius 
H.  bene  et  artificialiter  cum  novacula  munda  et  salu- 
bri  radere  apud  IST.  assumpsisset,  predictus  R.  barbam 
ipsius  H.  cum  quadam  novacula  immundi  et  insalubri 
tarn  negligenter  et  inartificialiter  rasit,  quod  facies 
ipsius  H.  morbosa  et  scabiosa  devenit  ad  damnum 
ipsius  H.  40s.  ut  dicitur." 


KELYNG-  reports  a  case  in  which  the  qiiestion 
was,  whether  a  pardon  for  murder  could  be 
pleaded  to  a  conviction  for  manslaughter.  It  was 
ultimately  allowed. 

1  Goodall  V.  Harris,  2  P.  Wms.  561. 


206  CURIOSITIES   OF 

SIK  SAMUEL  EOMILLY  designates  the  Act  of 
Elizabeth  concerning  Egyptians  as  "the  most 
barbarous  statute  that  ever  disgraced  our  Criminal 
Code."  It  was  enacted  that  "all  persons  above  the 
aoe  of  fourteen  years,  that  shall  be  found  in  the  com- 
pany of  vagabonds  commonly  called  or  calling  them- 
selves Egyptians,^  or  counterfeiting  or  disguising 
themselves,  by  their  apparel,  speech,  or  behaviour, 
like  them,  although  they  are  persons  born  within  the 
king's  dominions,  if  they  continue  one  month,  are 
felons  and  ousted  of  clergy."  Sir  Matthew  Hale's 
only  observation  upon  these  statutes  should  be  no- 
ticed :  "  I  have  not  known  these  statutes  miich  put 
in  execution,  only  about  twenty  years  since,  at  the 
Assizes  at  Bury,  about  thirteen  were  condemned  and 
executed  for  this  offence."  ^ 


LOED  COKE  has  mentioned  what  he  calls  a 
"fiattcring  preamble  "  of  a  Statute  of  Henry  VII. 
every  statement  of  which  he  endeavors  to  show  was, 
to  use  his  expression,  ex  diametro  opposite  to  the 
enactments  which  it  was  made  to  preface.'  Such  a 
preamble  may  be  thought  analogous  to  the  metaphor 
applied  by  Butler  to  Sir  Hudibras's  courtship,  of  the 
sculler  who  looks  one  way  and  rows  another. 

1  ....  "  That  handkerchief 

Did  an  Ecjyptian  to  my  mother  give."  —  Othello 

2  1  Hale  P.  C.  670,  671. 


THE  LAW  REPORTERS.  207 

SAUNDEES  reports  this  case :  "  It  was  ruled  by- 
Hale  Chief  Justice,  cseteris  tacentibus,  that  a 
certain  fault  in  a  declaration  was  only  matter  of  form 
and  not  matter  of  substance.  Yet  Saunders  for  the 
defendant  urged  that  there  were  twenty  books  to 
prove  it  to  be  a  matter  of  substance  ;  which  the  Chief 
Justice  confessed,  but  he  said  that  the  opinion  had 
been  otherwise  for  ten  years  past;  hut  I  believe  he 
meant  his  oivn  ojnnion."  ^ 


LORD  COKE,  in  his  Third  Institute,  observes  of 
the  Statutes  of  Apparel,  that  many  of  them 
"fight  with  and  cuff  one  another."  Lord  Herbert 
remarks  that  these  laws  for  the  government  of  fashion 
themselves  changed  fashion.  It  was  not  till  the  reign 
of  James  I.  that  Englishmen  obtained  liberty  of  ap- 
parel. 

IE  a  carrier,  to  whom  a  package  of  goods  is  delivered 
to  take  to  a  certain  place,  open  the  package  and 
take  out  part  of  the  goods,  it  is  larceny ;  yet  it  is  not 
larceny  if  he  take  away  the  ivliole  package.^  Chief 
Justice  Kelyng  says,  "  I  marvel  at  the  case  put  13 
Edw.  IV.  96,  that  if  a  carrier  have  a  tun  of  wine 
delivered  to  him  to  carry  to  such  a  place,  and  he 

1  Slowe  V.  Wilmott,  2  Saund.  402. 

2  Commonwealth  v.  Brown,  4  Mass.  580. 


208  CURIOSITIES   OF 

never  carry  it,  but  sell  it  all,  this  is  no  felony ;  but  if 
he  draw  part  of  it  out,  this  is  felony.  I  do  not  see 
why  the  disposing  of  the  whole  should  not  be  felony 
also."  1  It  has  been  observed  that  tiiis  construction 
"  savors  of  contradiction  "  and  "  stands  more  on  posi- 
tive law  than  sound  reasoning." 


Mrs.  Peele's  Case.^ 
ri^HIS  was  a  suit  against  a  certain  Mrs.  Peele,  a  sort 
-L  of  London  Madame  Le  Brun  of  that  day ;  the 
representative,  in  the  English  capital,  of  this  lady, 
whose  Parisian  name  and  fame  are  handed  down  to 
legal  immortality  in  one  of  the  great  English  Peerage 
Cases,  and  who  has  left  the  bad  repute  of  "  la  mri- 
tahle  Maison  Le  Brun,"  as  Police  Reports  of  1860  as- 
sure us,  to  at  least  three  hundred  and  twenty-eight 
houses  of  a  special  fame,  sometimes  called  an  ill  one, 
in  Paris,  at  this  day.  The  Viscountess  Purbecke,^  fa-_ 
mous  for  her  beauty,  and  who  so  abused  the  dangerous 
gift  as  to  become  the  scandal  of  St.  James's  Court, 
was  at  this  time  the  occupant  of  Somerset  House,  then 
as  now  a  princely  establishments  built  originally  by  the 

1  Kelyng,  83. 

2  Littleton,  150,  242. 

3  Her  name  was  Frances  Coke,  and  she  was  a  dauf^hter  of  Sir 
Edward  of  that  name.  Her  mother  was  Lady  Hatton  —  a  Cecil  — 
known  in  general  history  as  a  sister  of  Sir  Thomas  Burleigh,  Earl  of 
Essex,  but  better  known  to  lawyers  as  the  uncomfortable  and  imperious 
wife  of  the  great  Chief  Justice,  whose  very  name  she  refused  to  take, 
and  whose  life  she  tormented  by  every  indignitj^  that  it  was  possible  for 
a  woman  to  offer  to  a  husband. 


THE  LAW  REPORTERS.  209 

Protector  Somerset,  long  the  abode  of  Queen  Elizabeth, 
and,  at  the  time  we  speak  of,  the  resort  of  all  that 
was  "  emancipated "  in  the  world  of  courtly  fashion. 
Like  most  beautiful  women,  however,  while  bringing 
troops  of  lovers  daily  to  her  feet,  the  Countess  was 
herself  the  slave  of  one.  This  favored  person  was 
Sir  Eobert  Howard,  a  younger  son  of  the  noble 
family  of  Suffolk.  And,  not  too  much  to  shock  the 
hicnsmnccs,  an  arrangement  was  contrived  to  give  the 
accepted  lover  what  in  France  is  known  as  les  petites 
entrees,  while  the  respectable  world  at  large — includ- 
ing the  lady's  very  virtuous,  and,  no  doubt,  very 
hopeful  admirers  —  should  enjoy  in  greater  state  and 
dignity  les  grandes.  The  virtuous  Mrs.  Peele  was  the 
common  friend  of  Sir  Ptobert  and  the  lady ;  and,  rent- 
ing a  handsome  mansion  next  door  to  Somerset 
House,  "a  private  passage,"  the  reporter  Littleton 
tells  us,  had  been  made  between  the  two;  so  that, 
entering  Mrs.  Peele's  street  door.  Sir  Eobert  could  find 
himself,  without  either  scandal  or  difficulty,  in  the 
dressing-room  of  Lady  Purbecke  —  and  along  with 
its  less  innocent  attractions  disclosing  through  the 
open  lace-work  of  its  half-drawn  curtains  and  in  its 
southern  views  the  then  sedgy  banks  of  the  Thames, 
the  still  lovely  lawns  of  Laml^eth,  the  ever-beauteous 
spires  of  Westminster,  and  tlie  slope  —  in  those  days 
so  graceful  —  of  the  Surrey  Hills  !  Quid  non  vincit 
amor  ?  How  successfully  it  was  all  achieved  !  How 
delightfully  they  passed  their  time !     Supping  and 


210  CURIOSITIES   OF 

sinning  so  decorously,  in  all  the  charms  of  "  love's 
beginning."  But  alas  !  the  aliquid  amari  that  springs 
up  even  in  the  fountain  of  our  innocent  delights ! 
These  very  happy  parties  were  not  allowed  to  remain 
undisturbed ;  and  notwithstanding  the  praiseworthy 
efforts  they  had  made  to  avoid  offending  the  over- 
good,  Mrs.  Peele  was  brought  before  the  High  Com- 
missioners upon  the  discreditable  charge  of  being 
"guilty  of  aiding,  causing,  and  procuring  adultery 
between  the  parties  " ;  and,  as  it  appears,  from  Little- 
ton's report,  found  Guilty,  and  Imprisoned. 


THERE  is  one  instance  in  the  reign  of  Elizabeth 
of  a  criminal  jurisdiction  being  directly  assumed 
by  the  Court  of  Chancery  on  a  bill  filed  to  punish 
a  party  for  corrupt  perjury,  where  there  was  not  suffi- 
cient evidence  to  convict  him  at  common  law.  He 
demurred,  but  was  compelled  to  answer.^ 


TEEMAIN'S  CASE.  Being  an  infant  he  went  to 
Oxford,  contrary  to  the  orders  of  his  guardian, 
wlio  would  have  him  go  to  Cambridge.  And  the 
court  sent  a  messenger  to  carry  him  from  Oxford  to 
Cambridge.  And  upon  his  returning  to  Oxford  there 
went  another,  tam  to  carry  him  to  Cambridge,  qiiam 
to  keep  him  there.^ 

1  Gary,  90.  ^  1  Strange,  167. 


THE  LAW  REPORTERS.  211 

LORD  COKE  in  the  Third  Institute  relates  that 
many  and  common  women  had  seated  them- 
selves in  a  lane,  next  to  the  house  of  the  friars  Car- 
melites in  Fleet  Street :  this  being  an  open  and 
known  wickedness.  King  Edward  III.,  to  the  end 
that  these  friars  might  perform  their  vows,  one  of 
which  was  to  live  in  perpetual  chastity,  took  order 
for  the  removing  of  these  women.i 


THE  following  is  the  entire  judgment  of  Mr. 
Justice  Best  in  an  important  case  :  "  If  we  were 
to  grant  this  rule,  we  should  make  ourselves  auditors 
to  all  the  trading  corporations  in  England."  ^ 


CHIEF  JUSTICE  IvELYNG  was  unspeakably 
proud  of  the  collar  which  he  wore  as  Chief 
Justice,  this  alone  distinguishing  him  externally  from 
the  puisnies,  a  class  on  whom  he  looked  very  haugh- 
tily. In  his  own  report  of  the  resolutions  of  the 
judges  prior  to  the  trial  of  Lord  jMorley  for  murder, 
before  the  House  of  Lords,  he  considers  the  following 
as  the  most  important :  "  We  did  all,  una  voce,  resolve 
that  we  were  to  attend  at  the  trial  in  our  scarlet 
robes,  and  the  Chief  Judges  in  their  collars  of  S.  S.,  — 

1  3  Inst.  205. 

2  The   King  v.  Bank   of  England,  2   B.  &  Aid.  p.  623.     Quoted  iu 
American  Railway  Frog  Co.  v.  Haven,  101  Mass.  p.  407, 


212    CURIOSITIES  OF  THE  LAW  REPORTERS. 

tvMch  I  did  accordingly r  ^     His  volume  of  decisions 
in  criminal  cases  abounds  witli  silly  egotisms. 


"TTTE  wiU  conclude  this  volume  witli  a  single  line 

V  V      from  Lord  Bacon  :  — 

"Eatlier  to  excite  your  judgment  briefly  tlian  to 
inform  it  tediously."  ^ 

1  Kelyng,  53,  54.    6  Howell  State  Trials,  769. 

2  Articles  of  Union  between  England  and  Scotland. 


THE     END. 


Cambridge  :    Electrotyped  and  Printed  by  Welch,  BIgelow,  &  Co. 


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